Justice Committee on March 29th, 2007

[Jason Gratl]

Just very briefly, the Civil Liberties Association is in the process of studying the very different ages for consent in marriage, driving, enlisting, having sex, drinking, and that sort of thing, and voting, of course, quite critically. It does seem like a hodge-podge. There seems to be little attention paid to capacity. And it would seem as though on the face of it, many of these activities have overlapping levels of responsibility and appreciation of the emotional consequences, as well.

As with the study of this bill, it seems as though little attention has been paid to the psychological and sociological evidence pertaining directly to the issue of capacity. So my friend Mr. Quist will speculate that 15-year-olds are unable to deal with the emotional consequences of having sex, without tendering any evidence—rather, relying on opinion polls. To that extent, the approach to children's sexual autonomy or the sexual autonomy of minors is much more populist than principled, and that seems to be, in our view, a dangerous approach.

[The Chair, Conservative, Art Hanger]

Ms. Pate.

[Kim Pate]

I was referring not necessarily to needing more police. I think you're right, that it's targeted. Sometimes it's very difficult to investigate and uphold sexual assault charges, and in our experience, and certainly in my experience now—I'm at the law school with Ms. Gilbert right now teaching a course around these lines—it's very clear that the ability and the will to police and protect children and women when they're in abusive situations is problematic, and that's what I was referring to.

If in fact our interest—and your interest, as you've articulated—is protection of children and youth, then I would argue that there are already provisions that we need to be focusing on implementing, not necessarily spending more time or money creating new laws that create a perception of more protection when in fact, if it's still not taken seriously at the forefront, we may not see any greater protection.

In fact this provision, as I went on to say, also creates the potential for ending up inadvertently with more young women in particular who might be in exploitive situations being criminalized if they're unwilling to testify, which is already an issue that we know exists in violent relationships to start with; that women who are for whatever reason fearful, children who are fearful to proceed after they initially report, then often will end up being charged themselves. That's the concern I was trying to raise.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

I want to reiterate. We've had several committee meetings on this already and have heard from a great panel of witnesses both today and in the past. Oftentimes the conversation turns around children's sexual rights, the rights of young people to engage in sex, mostly with other young people.

With respect to those who are raising that issue, I think this bill fully contemplates that. The bill we've brought forward has a close-in-age exemption that fully prevents any criminalization of activities between peers, with a five-year close-in-age exemption.

What this bill aims to get at—and we heard this in our previous panel, and I'd like some comment on it—is that we hear of those who actually treat Canada as a haven. They may come from a jurisdiction where the age of consent is 16. I'll use the example of a 50-year-old male, but we could use the example of a 40-year-old male or a 30-year-old male or a female.

I just read this morning about a case of a female where the age was reversed, but a significantly older person who wants to have sex with a 14-year-old or a 15-year-old. In their home jurisdiction it is completely prohibited, because the age of consent is 16. In Canada, the age of consent is 14. Now, there are categories whereby a 14-year-old would be protected if there were an exploitive relationship. That has to be proven.

What we have is a situation where society has said to us, and parents have said to us, they think this is already illegal. That's the evidence we heard. We've heard from witnesses who say that when they tell parents that a 40-year-old can have sex with your 14-year-old, they're shocked. They think this is already against the law.

What this bill aims to get at is to send a message to individuals who would like to come to Canada or are in Canada and want to have relationships with people who are significantly younger, 14 and 15 years old, that this is not going to happen, that it's against the law.

I'd like a general comment on how we've addressed the close-in-age. There may be some in this panel who think that “close in age” should be more than five years, and if that's the case, I'd like to hear arguments to support it.

I guess my question is—what this bill gets at is not about teens having sex with each other—whether you think it's ever appropriate for, as an example, a 40-year-old or a 45-year-old man to have sex with a 14-year-old. Is it ever appropriate in our society for someone who is 20 or 30 years older than a 14-year-old to have sex with them?

[The Chair, Conservative, Art Hanger]

Who would like to begin the response?

Mr. Trudell.

[William Trudell]

That is—

[Rob Moore, Conservative, Fundy Royal, NB]

I ask that question because that's what we're talking about.

[The Chair, Conservative, Art Hanger]

Mr. Trudell, you have the floor.

[Rob Moore, Conservative, Fundy Royal, NB]

That's what we're talking about here.

[William Trudell]

If you invite me back tomorrow I might be able to answer the question. I'd have to think about it.

It's an emotive question. I think it probably--

[Rob Moore, Conservative, Fundy Royal, NB]

I just want to interject one quick thing, Mr. Trudell. It's a difficult question, but this is a difficult issue. That is what we're dealing with. In Canada a 50-year-old man can have sex with a 14-year-old, and in fact they do. So I'm asking, should we as a society accept that? Is it ever acceptable?

[William Trudell]

Yes, it would be acceptable in certain circumstances, because we don't make laws right across the board. There have to be all kinds of factors in that example.

But let's just go back for a couple of seconds. If there are Americans coming across the border to have sex with Canadians, I think there are laws in the American jurisdiction that cover that kind of offence. So it's not just like it's open season. I didn't bring them with me, but there are American offences that cover that.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, I just want to interject on that point before you leave it. We don't want to rely on the Americans to protect kids in Canada.

[William Trudell]

No, but you were talking about open season.

You know what? I think it's really important that you mentioned the close-in-age exemption. Five years is an arbitrary figure; it's picked. That's why I've become very attracted to the idea of the presumption that was introduced. It wasn't our idea; it was introduced by a person who was sitting here earlier this morning. That really covers what you're trying to do in the protection of this act, but it also leaves it open for a judge to decide.

It's good that there is this close-in-age exemption; that's probably why you're getting a lot of support for the bill. But because five years is arbitrary, I think that you might want to go a little bit further to cover those circumstances where there may be explanations a judge would be satisfied in dealing with.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Gratl, did you want to respond to Mr. Moore's question?

[Jason Gratl]

I'd have to say that the example is a telling one, because it's not obvious that there is anything like an epidemic or open season on relationships between 14-year-olds and 40-year-olds. People like to trot out that example as something unseemly because, I think many of us would agree, it is unseemly—perhaps not to those actually in the relationship, but many of us looking from the outside in might think it's unseemly and inappropriate.

The question is not, though, whether it's inappropriate. To my mind, the question is whether the criminal law should be brought to bear on the issue. When I think about it, I think, gee, aren't there a lot more troubling social issues out there where we actually know that there's a great deal of child exploitation, particularly in the area of abuse by persons in positions of trust, power, and authority? We know that the majority of child sexual abuse occurs within the family by somebody in a position of trust.

If attention is to be paid to this issue, why shouldn't it be paid to the area in which there actually is an epidemic, rather than this marginal issue, which seems to us to be an issue of moralizing, of concern over what kind and when children are having sex, rather than the actual predatory relationships that do exist that we know about, that we have statistics on? That's our position.

[The Chair, Conservative, Art Hanger]

Ms. Pate, do you care to reply?

[Kim Pate]

I would certainly support the last point made.

I would invite Professor Gilbert to talk a bit about the implications again in terms of the constitutional issues of marriage, because, as many of you well know, especially in generations preceding ours, a gap of more than five years between marriage partners is not unusual. My understanding is that would still be permissible currently under many of the marriage laws. So I'll wait and let Daphne come to that.

[The Chair, Conservative, Art Hanger]

Mr. Dodds and Mr. Brett, we'll get to you in a moment.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, since it's my question, I don't want to go down on a tangent on the marriage issue. We heard a statistic earlier that it represents, I think, 0.7 out of 100,000. The intent of the bill is to address the issue of adults who want to have sex with 14-year-olds and in many cases come from jurisdictions where they would not be allowed to. So can we stick to that question of whether it is appropriate?

I haven't heard anyone argue that there should not be any age of consent. If there are any arguments to that effect, I'd be interested in hearing them. I haven't heard anyone say there shouldn't be an age of consent, period. So presumably all the witnesses agree with the current age of consent, which is 14, and that we shouldn't lower it to 12. Right now there's a law against an adult having sex with a 13-year-old. This bill raises the age of consent to 16.

So that's the main question: is it appropriate? Should it be legal for a 45-year-old man to have sex with a 14-year-old?

[The Chair, Conservative, Art Hanger]

Under that particular point, did anyone else want to reply?

Mr. Quist.

[Dave Quist]

I'll just add my comments in here as well. In the vast majority of cases, it should be illegal. There are perhaps the odd extenuating circumstances, and perhaps the point Mr. Trudell has raised would deal with that. But if we're going to have a number, five years seems like a reasonable number to at least start the debate on and to substantiate the law into it at that point.

My colleague Mr. Gratl has raised a point as well in terms of sexual exploitation in the family, versus outside of the family. His point is valid as well. There are some certain academic issues happening within the family. There are also laws dealing with that at this particular point, and maybe they need to be strengthened. That's something this committee could be looking at in the future as well.

We do know, however, that sexual exploitation has risen dramatically in the last twenty to thirty years, between predatory adults and teenagers. I think that's what this bill is addressing. It's not addressing morality or whether kids should have sex or not. It's addressing how we enforce the law and make the laws tougher on adult sexual predators who prey on our youth and teens.

[Prof. Daphne Gilbert]

If I could just make one comment as well, this does come down to what Mr. Gratl was saying about the difference between what we find socially objectionable and legally objectionable. I think it is socially objectionable for a 40-year-old man to be preying on teenagers. I think it's socially unacceptable for a 40-year-old man to have sex with a 17-year-old. There are lots of things about unconventional sexual relationships that I wouldn't approve of if my own children were engaging in them, but I think there's a difference between what we say we don't like socially and what we want to make criminal.

[Rob Moore, Conservative, Fundy Royal, NB]

Would it always be “preying on” if it was a 40-year-old and a 14-year-old? You used the term “preying on”, and that's the way I would see it too. But I'm just wondering, because that's why we want the age of consent to be 16. Maybe there could be examples. We recognize in the code that there could be an exploitative relationship with someone who is under 18, but we have to draw the line somewhere. So, again, is it always preying if it's a 40-year-old and a 14-year-old?