Evidence of meeting #60 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
9:20 a.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Yes, but Mr. Petit seems to be off on another planet.
9:20 a.m.
Conservative
The Chair Conservative Art Hanger
Mr. Petit has a statement to make. The matter now is that Mr. Comartin can present his argument for NDP-4.
Mr. Comartin.
9:20 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
NDP-4 is again on section 159, but as opposed to the prior two proposed amendments, both from the Liberals and from me, this deals very specifically with the age of 16 years. Again, although there is no reference in the primary bill, Bill C-22, to section 159, we are clearly dealing with the age of consent being fixed in this country, for all purposes with regard to sexual activity, at 16 years.
So again, Mr. Chair, if this amendment is not acceptable and we don't pass it, we're going to end up in this situation, which has been ruled by the courts, all the way up to the courts of appeal in the provinces of Ontario and Quebec, as being contradictory. We're going to be creating a real anomaly here, and it's not the way legislation should be drafted. The government has a real responsibility here, quite frankly, to agree to this amendment and to do it unanimously. This is a simple way of getting around the whole issue of the language that's in Marleau and Montpetit, which I find quite restrictive. At some point we should deal with that in a more global sense. That aside, this is one of the amendments to which, clearly, the government should be agreeing, and it should be going through unanimously both here and when this bill goes back to the House.
On that basis, I would argue that you should rule it in order. It deals specifically with moving the age to 16, as we are doing in the balance of the bill. There's no question that the focus of the bill is to establish the age of consent in this country as 16 for all purposes. I would say this is different from simply repealing section 159, and on that basis you should rule that in fact it is admissible.
9:25 a.m.
Conservative
9:25 a.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Chairman, section 159 in the Criminal Code, almost everyone around the table will concede, has some problems, inconsistencies, and constitutional problems. We all acknowledge that. The question is whether or not we are capable, through the mechanism of this existing bill, of amending and fixing those problems.
If all we had to do was list by reference section 159 in the bill we're studying today, then I would say that's okay, we just have to add it by reference. In effect we would be doing the same thing with section 159 that we're doing with all of the other sections. But that is not what Mr. Comartin's amendment proposes to do now. He is inviting the committee to incorporate the basket of section 159 issues into this bill and fix section 159 that way.
I think this runs into the same problem that the earlier amendments had, which is fairly conspicuously being outside the scope of the existing bill. While many of us wish that weren't the case, the fact is the scope of the bill is what it is, and we can't fix section 159 with this bill without offending that parliamentary principle. That's my view.
9:25 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
I'd just like to say I agree with Mr. Lee. I'd definitely like to amend section 159, but I don't want to frivolously overrule the chair all the time.
9:25 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Bagnell.
Mr. Comartin, the impact of amendment NDP-4 would be very much the same as that of the previous amendments, in that it proposes to change another section of the Criminal Code. I therefore rule the amendment inadmissible for the same reasons.
9:25 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'd like to challenge the chair on this point. And again, could we have a recorded vote?
9:25 a.m.
Conservative
The Chair Conservative Art Hanger
Shall the ruling of the chair be sustained? Those in favour, please indicate.
9:25 a.m.
Conservative
The Chair Conservative Art Hanger
We will have a recorded vote.
(Ruling of the chair sustained: yeas 6; nays 5)
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'm prepared to go back to the first section and my first two amendments.
9:30 a.m.
Conservative
The Chair Conservative Art Hanger
Is the committee in agreement to go back to clause 1?
On amendment NDP-1, Mr. Comartin, please go ahead.
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
Mr. Chair, what I'm attempting to do with these amendments is to extend the provisions on page 2 in proposed subsections 150.1(2.1) and 150.1(2.2)--and then an additional one--on an indefinite basis. What this protection does is that in the case of any relationship that falls into these categories, meaning the parties have been cohabitating and are having a child, or they are married--I think those are the two basic positions--this proposed subsection would not apply to them, no matter what the age gap is between the couple.
It's there in a limited way, in effect retroactively, so that if the relationship exists at the time this law comes into effect, they would have that protection; this part of the code would not operate against them, even if the age gap is greater than five years. We do have relationships of that nature. We heard that from the Juristat people. I don't think we got a definitive figure; my own sense is that somewhere around 1% of the population fits into that category of relationships of five years or more.
I'm going to refer to both amendments, Mr. Chair. The effect of the first amendment in replacing this wording in lines 23 and 24 on page 2 is that it would extend this prospectively as well as retroactively; it would go on an ongoing basis.
Then the second amendment--and I know it is a bit out of line to do this--would deal with the very specific case of an application under the provincial legislation that is outstanding. That's really what it's dealing with. That application is one to a court in a situation in which the age is under 16 for marriage. There's an outstanding court application for that purpose. A couple wants to marry. It's before a judge by way of a specific court application, so that application would be outstanding, and in NDP-2 we're saying if that were the circumstance, again this subsection of the code, when passed, would not apply negatively to those relationships.
To recap, NDP-1 is on an ongoing basis. If they fall into the category of either a common-law relationship, with a child, or the category of a marriage, this proposed subsection would not apply to them, and under NDP-2 it would not apply if there is simply an outstanding application at the time this proposed subsection of the code comes into effect.
9:30 a.m.
Conservative
The Chair Conservative Art Hanger
Dealing with each one separately, if I read NDP-1 correctly, in proposed subsection 150.1(2.2) on page 2, lines 23 and 24 would be struck and it would read, “matter of the charge if, on the day on which the alleged offence took place”, instead of “on the day on which this subsection comes into force”.
9:35 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I have to say that I find the wording a bit strange, but that's what the drafters gave us, after a great deal of discussion with them, as a way of extending what the original bill did to provide for this defence on a very limited, retroactive basis. The way of dealing with it on an ongoing prospective basis was to use this type of wording.
9:35 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thanks, Mr. Chair.
Just to be clear, the bill as introduced has a transitional marriage exemption, but the age of 16 is consistent. The federal government hasn't overall exercised its jurisdiction to set a minimum age to marry. In two instances, the Immigration and Refugee Protection Act states that any person under the age of 16 years will not be recognized as a spouse or common-law partner of a foreign national, and the Federal Law–Civil Law Harmonization Act also prescribes the minimum age as 16 years.
We really don't want to get into making exceptions in the future, as has happened in some other jurisdictions. I want to understand exactly what Mr. Comartin is getting at, but we don't want to make entering into some formal arrangement like marriage or some other partnership a blanket defence, or an excuse for violating the intent of what we're trying to do in Bill C-22. It sets the age of consent at 16 and provides a close-in-age exemption.
Some provinces have a lower age than 16 when someone can marry. Bill C-22 respects that. If a province sets the age when someone can marry at 15, Bill C-22 respects that, but the close-in-age exemption has to be in place. The close-in-age exemption we have set for 14-year-olds and 15-year-olds, for example, is five years. So in those jurisdictions where someone can marry at 15, if it's within five years there's absolutely no conflict whatsoever.
Going forward, in some cases it would be at the discretion of a judge. I don't know if Ms. Morency wants to expand on that.
Overall, the government doesn't want to create loopholes that will allow some people to get around entering into these types of great-in-age relationships, using the shield of marriage or a prospective marriage.
April 17th, 2007 / 9:35 a.m.
Carole Morency Acting General Counsel, Department of Justice
The only point I would add, as Mr. Moore has indicated, is that there is something of this nature that exists in the United States. In many of the states there is a marriage exception. The exceptions that exist on a permanent basis have been criticized by many as being a way to excuse what is otherwise considered a sexual offence, where the laws of age of consent have been prescribed in a such a way that the accused can bypass them by entering into a married or common-law relationship, as Bill C-22 addresses.
The checks and balances exist within the provinces under their marriage acts dealing with solemnization, and in two provinces and one territory, no one under the age of 16 can marry. In the other ten jurisdictions they can marry under that age only with parental consent and on the approval of a court, for the most part, or in Ontario, Nunavut, and the NWT, with the consent of the minister responsible for marriages.
In each case, the criteria that are stated in their legislation are that it has to be expedient or in the best interest of the young person, or she's pregnant. In that consideration, the court would consider whether or not this consent would authorize what is otherwise prescribed as a sexual assault under the Criminal Code once Bill C-22 comes into effect. That's why Bill C-22 addresses the issue prospectively, so that relationships that exist at the time that Bill C-22 comes into force, be it a married relationship or a common-law relationship, an established one as defined, are protected, notwithstanding that Bill C-22 would otherwise have made it illegal because the partner is more than five years older.
If we look at what stats are available to tell us how often this comes up as an issue, it's true that the director for the Canadian Centre for Justice Statistics testified that based on their information, 0.07% of youth aged 15 years were in a married or common-law situation—72 people per 100,000. If we look at estimates from Statistics Canada for 2005 on youth who were age 15--one male and four females--who are legally married, we don't know the age of their partners.
So it is a very rare example of the question that I understand is at the heart of this amendment, and the provinces have the scope under their solemnization of marriage to deal with that within the scope of the close-in-age exception, and in three provinces never allow it.
9:40 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Some of our witnesses suggested that would be challenged constitutionally if the law were not treating everyone equally in those provinces where you can marry under the age.
I would also like to hear from Mr. Comartin again the rationale for his amendment.