Justice Committee on April 17th, 2007

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Mr. Moore in response, then Ms. Morency.

[Rob Moore, Conservative, Fundy Royal, NB]

One thing that Mr. Lee said, with which I agree wholeheartedly—and that's why I am saying this—is that this bill is not about marriage; it's about the age of protection. So in going down this trail on the issue of marriage, which is addressed in the bill, we're not dealing with what the reality is out there. Ms. Morency has the numbers; the reality is that this is not taking place. I think there's some breakdown between what Mr. Lee says is the intent of the amendment and what Mr. Comartin says is the intent of the amendment.

In Mr. Comartin's fact scenario, a criminal offence took place, and this is contemplating an older individual marrying someone younger, and thereby becoming exempt from criminal prosecution. This is what we were saying when I talked about some sort of retroactive protection from prosecution.

We've seen some examples, and Ms. Morency can talk about this a little further. I am concerned about us creating a blanket defence for someone pursuing marriage in order to prey on a young individual. I think this bill has done an excellent job of contemplating the scenarios. Also, I haven't heard anything yet that would indicate we should change it, in light of the fact that there are transitional provisions, consistent with provincial jurisdictions, and the numbers certainly bear this out.

From the scenario Mr. Comartin raised, we don't want to look back and provide retroactive protection for someone who's preying on a young person.

[The Chair, Conservative, Art Hanger]

Ms. Morency.

[Carole Morency]

If I'm reading the amendment correctly, it would amend the whole of proposed subsection 151.1(2.2), which provides a transitional exception, not only for married couples as of the date of coming into force, but also for those in common-law relationships needing a definition.

The numbers provided in testimony by the Canadian Centre for Justice Statistics showed 72 per 100,000 of population. If you look at what we know about how many were married or estimated to be married in 2005, for example, the majority in that category are in common-law relationships. There are no checks and balances in place with those types of relationships.

Again, does this come back to Mr. Moore's point that by extending the transitional exception to make it permanent, you basically open the door to do exactly what Bill C-22 is trying to do, because the overwhelming numbers are in common-law situations? So why bother applying to marry, because a 25-year-old could move in with a 15-year-old, or she becomes pregnant, and this gets around and undermines Bill C-22.

So everything that Mr. Moore has said, but specifically in terms of how I read the amendment to extend the transition exception to both types of relationship, perhaps a handful of marriages and an overwhelming number of common-law situations.... And that's where everyone would go.

[The Chair, Conservative, Art Hanger]

Mr. Lee, do you have any further response?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I understand much better now. Thank you.

[The Chair, Conservative, Art Hanger]

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

My question is for Ms. Morency.

In Mr. Comartin's amendment, we read “the date on which the alleged offence took place”, but in the bill before us. we read “the day on which this subsection comes into force”. That's the difference.

A lawyer reading that document knows that the effective date is the date on which it receives royal assent, and that everything in the section can be used as a defence once it is in effect.

But since you draft legislation for the federal government, I would like you to explain to me the difference between “the date on which the alleged offence took place”, and “the date on which this subsection comes into force”.

When I read the text carefully, I get the impression that it can apply retroactively. The day on which it comes into force is fixed, a lawyer knows that a certain date represents a certain thing. But with the words “the alleged offence”, a complainant could bring a complaint in 20 years saying that something happened at a particular time, and the defendant could be found guilty because of the words “date of the alleged offence”.

Ms. Morency, I would like to know your opinion on the two texts, both of which have merits. I am not clear on the force of the amendment.

[Carole Morency]

I'm not sure if I'm in the best place to explain. I think perhaps Mr. Comartin might be better placed to explain his understanding of this. But the way I read NDP-1 and NDP-2, it's clear that, as I understand the second one, the intent is to say the new age of consent or age of protection would apply only prospectively--so to cases that arrive after this case. It's not in Bill C-22 now because the law applies prospectively only and would apply only to situations that arise after the new age of consent comes into force. Those who would be caught would be those who are already in the situation, and that's why the transitional exceptions apply.

In terms of the first amendment, again, I probably would share Mr. Comartin's view that the wording is a little bit.... It's not immediately obvious to me as it's been explained to him by the drafters. I'm not sure if Mr. Comartin has a further explanation. But I understand the intent is to basically extend the transitional exception on a permanent basis.

As I say, just having seen it minutes before the committee began its hearing, it strikes me as a bit.... It's not the obvious solution, but I take Mr. Comartin's advice on that.

[The Chair, Conservative, Art Hanger]

Mr. Petit, does that answer your question?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I would just like to ask Mr. Comartin for some details about the question I asked Ms. Morency. I know that you are very knowledgeable about matrimonial law, but in criminal matters, we read the law. When defence counsel is representing an accused, he uses the effective date as a point of reference. He has a date in mind. Now you are replacing the term “date on which the subsection comes into effect” with “the date of the alleged offence”.

Ms. Morency left the question I asked her a little up in the air. Does that mean that you are going back in time and that you are providing protection retroactively? You know as well as I do that, in an indictment, you can accuse someone of an offence of a sexual nature 20 years later. I would like to know, if an indictment is made 20 years later, whether your amendment would provide any protection.

In Quebec, for offences of a sexual nature, young women do come before the courts alleging that their father, for example, abused them 10 and 20 years earlier. When you use the term “alleged offence”, do you want to provide protection in all cases? We don't do that if we just talk about the effective date. As I understand it, you want the law to be as retroactive as possible. So if a young woman claimed that she was the victim of abuse, that there had been an alleged offence, she would not be able to accuse her attacker. I am just asking the question. At the moment, I don't know any more than you do.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

It's a good point. Mr. Ménard said that the two things were different.

I have to say, Mr. Petit, I had not thought of that scenario of the young person coming back 10 to 15 years later and saying that back then, this was a crime. I do know that this would protect. My amendment would raise a defence of saying no, if you were married or living in that common-law relationship as defined by the code, that conduct was not an offence.

So there's no question in my mind that would provide a defence for the senior person in the relationship, but I had not addressed my mind specifically to that. I'm more concerned about the current situation, not one in the future. But in fact it would have that effect, acting as a defence for those future accusations.

[The Chair, Conservative, Art Hanger]

Mr. Moore, in response.

[Rob Moore, Conservative, Fundy Royal, NB]

Just so we're not going too far down a trail, if we change the age of consent now, someone is not going to be able to go back 20 years and say that when they were 15 they were in a relationship with somebody who was 21, and now that the age of consent is 16, that was an offence back then. It's the law that applied at the time. Even in those scenarios that Mr. Petit has mentioned where we go back 20 years, it had to have been a criminal offence at the time.

We can't--and we don't--retroactively with this bill criminalize people. And in fact we don't retroactively criminalize relationships that are currently entered into, because there's the transition.

So I think a lot of the concerns I'm hearing raised are not triggered by this bill, actually. There's not going to be a retroactive criminalization of past relationships, and current marriages or common-law relationships are also protected. And the bill works in consistency with provincial solemnization-of-marriage laws, as well. So a lot of what I'm hearing is actually addressed in the bill.

[The Chair, Conservative, Art Hanger]

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Mr. Chair, I think we're long past the time; we need to move ahead on this. The long debate on amendment after amendment after amendment is simply slowing the process down.

When I speak to my constituents and they realize the age of consent is 14, many of them can't believe it. So I would be opposed to any measure, Mr. Lee, that would change the name of this bill to “age of consent”. I think “age of protection” is very appropriate. That's what we're trying to do with this bill; we're trying to protect the vulnerable children and young people of our country. I would be opposed, then, to this amendment, which would create in my mind a permanent loophole and an opportunity for those preying on young people.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Albrecht.

Thus far Mr. Lee was musing. Until I get a written submission as far as an amendment is concerned....

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I wanted to discourage him.

[The Chair, Conservative, Art Hanger]

Oh, okay, Mr. Albrecht.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I just have four points on this. One is that in the numbers, we talked about roughly 3,000 married and common-law couples, and then you add a few pregnancies on top of that. Mr. Comartin's amendment would legalize at any one time in the future roughly 3,000 cases—not a few cases—the way the amendment's written. So it's a significant number. In the future, if they decide to be married or be common law, or if they became pregnant, then whether it would be legal is the issue we're considering.

My second point is that yesterday we were discussing the bill with the minister, who said he had consulted all the attorneys general as a matter of importance. Ms. Morency, I'm wondering what the attorneys general in the provinces think about allowing marriage under 16. What are their thoughts on us making it illegal for some of those marriages to occur? What have they told you?

[Carole Morency]

I can't comment specifically on each jurisdiction. In fact, this is an issue that's been longstanding. As members around the table will know, over the years the Department of Justice has consulted with members of the public and officials in the provinces and territories on issues involving child sexual exploitation, including the age of consent. There typically is a general consensus of support for measures that will better protect children and youth against sexual abuse and exploitation.

On the specific issue of the age of consent, there has been a divergence of opinion in prior consultations or discussions with FPT officials in terms of how and when this would be effected. The former Bill C-2 in the previous Parliament had addressed some of those concerns. Bill C-22 addresses concerns that continue to remain and are shared by provincial counterparts.

In the context of the current FPT discussions, I can say that the age of consent issue was raised with me. After Bill C-22 was raised, there were some questions from FPT officials, on the family law side, about how this would operate. And we had a similar exchange of information to what we've just had with this committee: a discussion of what the division of powers is right now; how provinces do or do not allow young people under the age of 16 to marry, and in what circumstances; and what would be the interplay between Bill C-22 and those powers.

That's as far as I can speak personally. For sure, there have been attorneys general who have spoken publicly in support of Bill C-22. I believe Alberta and Manitoba have. Over the years there's been a range of views generally supportive of the direction of Bill C-22, which is to better protect against adult predation.

[Larry Bagnell, Liberal, Yukon, YT]

Was there no objection by those attorneys general where they allow marriage under 16?

[Carole Morency]

None that I'm aware of.

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

What happens if an immigrant couple who exceed the five-year close-in-age exemption are married and immigrate to Canada? If they carry on their marriage, then all of a sudden are they doing an illegal activity?

[Carole Morency]

Again, my understanding is that under the Immigration and Refugee Protection Act, Canada does not recognize a foreign national's marriage or common-law relationship if that young person is under the age of 16. So it doesn't engage on the close-in-age exemption.