Justice Committee on April 17th, 2007

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

My last point is that on the day the act comes into force, if a couple's already engaged in sexual activity.... For instance, for common-law relationships the exemption is a year, and if they've been living together, let's say, for 11 months, we're going to be criminalizing.... I mean, it's unrealistic to ask them to stop at that time. Perhaps it should say that on the day it comes into effect, people already in a sexual relationship, or who have....

How would you deal with this situation of some people who have been living together common law for 11 months? In that particular province, if the exemption happens to be a year, are they going to be illegal? They would be illegal the day this bill's passed, if they were to have sex another evening.

[Carole Morency]

Bill C-22 adopts the current definition of a common-law partner in the Criminal Code, so it's the same definition, an established conjugal relationship of one year or more. We're recognizing the possibility that a couple may have been in a shorter period of relationship and she's pregnant, or a child has already been born of the relationship. In that situation, if you're looking at an established relationship, the greater good would be to protect that established relationship because of the child, even though they don't meet the one-year prerequisite. Bill C-22 contemplates that. But short of those two situations, Bill C-22 does not provide any further exceptions.

[Larry Bagnell, Liberal, Yukon, YT]

If they've been living together for 11 months and having sexual relations for 11 months, the day after this bill comes into effect, if they have sex again, it will be a criminal offence.

[Carole Morency]

Yes.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, on that point, I agree with people who want to get on with it, but we're talking about protecting young people who are under the age of 16. In all the facts I'm hearing, now the young person is pregnant.

We support Bill C-22. We're trying to prevent these sexual relationships from happening. But once someone becomes pregnant, all the rules go out the window and it's okay that that relationship is taking place. To me, that's kind of defeating the purpose of the bill. We have an age of protection to protect young people. If that young person becomes pregnant, we don't throw the rules and the protection out the window. If they get married, we don't throw the protection out the window.

[Larry Bagnell, Liberal, Yukon, YT]

That wasn't my question. My question is, if they've been living together for....

[Rob Moore, Conservative, Fundy Royal, NB]

But that's the scenario that I'm hearing. They're living together and they get pregnant.

[Larry Bagnell, Liberal, Yukon, YT]

I'm not talking about pregnancy at all. They've been living together for 11 months and having sex every night, and the next day it becomes a criminal offence.

[Rob Moore, Conservative, Fundy Royal, NB]

Common law is established at one year, and that's a line that has been drawn. We have to draw some lines sometimes. We used to have a line at age 14. Now the line is going to be at age 16, and the close-in-age exemption is five years. For a legal common-law relationship to be established, it's one year, and this bill contemplates people who are in marriages and common-law relationships.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thanks.

Just in the vein of drawing lines and trying to move forward a little bit here, when you take Mr. Comartin's scenario of an attempt to identify exceptions to the rule and therefore make them, it would seem to suggest to me, with what exists now, let's move Bill C-22 aside right now and deal with the age of consent being 14. What exceptions to the rule do we have with the existing legislation, if any at all?

[Carole Morency]

Under the existing legislation, the age of consent is 18. If it's prostitution, child pornography, or where there's a relationship of trust, dependency, or authority, or as was expanded in the last Parliament under former Bill C-2, the court is directed to say that if there is a relationship involving a young person between the ages of 14 and 18, the court is directed to infer that that relationship is exploitative by looking at the age of the young person, the difference in age between the young person and the other person, how the relationship evolved, and the nature of influence exerted over the young person.

In other words, the court looks at the entire situation of that relationship to determine whether the young person's supposed or alleged consent could be accepted in law.

[Rick Dykstra, Conservative, St. Catharines, ON]

Currently, a person at the age of 13 could argue that in court.

[Carole Morency]

Consent of a 12- and 13-year-old is only valid with another person provided there's less than two years difference in age. You have a two-year close-in-age exception.

So it's age 18, at the upper limit, for prostitution, child pornography, these other exploitative relationships of trust, dependency, etc.; and at the bottom, a 12- or 13-year-old can engage in sexual activity with somebody who is less than two years older, and age 14 for all other purposes. Bill C-22 would move that bar up to age 16, maintain that lower two-year close-in-age exemption for 12- and 13-year-olds, but for 14- and 15-year-olds, the new ones who would be protected by Bill C-22, Bill C-22 proposes a new, broader close-in-age exception of five years, so less than five years.

Again, it's always provided that there's no relationship of trust, dependency, or authority. Even if it's a peer, a 15-year-old can sexually assault another 15-year-old. If it's not a question of consensual activity, the Criminal Code will still address that as well, because no consent is an assault.

[Rick Dykstra, Conservative, St. Catharines, ON]

Given the fact that these parameters exist currently, I fail to understand how the amendment addresses any issue by moving the age to 16. I need some clarification on that, because it makes it seem, Joe, that you could have the same arguments you're making at the age of 16 at the age of 14--and if it were 12, at the age of 12.

[The Chair, Conservative, Art Hanger]

I'll give Mr. Comartin an opportunity to respond to Mr. Dykstra's point.

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

No, I think Ms. Morency's point is accurate, that unless you have that near age of two years for the 12-year-old and the 13-year-old, it would not apply, because we're providing in here.... This is new. Proposed subsection 151(2.2) is new; that is not in the code at the present time with regard to the 12-year-old and 13-year-old. So this is new.

[Rick Dykstra, Conservative, St. Catharines, ON]

That's not what she said. She said that it existed already.

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

In other sections, but specifically with regard to the marriage and the common-law relationships we're dealing with....

[Rick Dykstra, Conservative, St. Catharines, ON]

I'm trying to understand. You haven't given an example of who your amendment would address other than somebody under the age of 16 who would then be in a relationship with someone five years older. So you haven't given a tangible reason why we should even be discussing this amendment.

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

Because we have 3,000 couples in this country--and it's actually more like 6,000 couples if you take both the 14-year-olds and the 15-year-olds--whose relationships are going to be criminalized.

[Rick Dykstra, Conservative, St. Catharines, ON]

No, they're not. In fact, as I understand what Mr. Moore has said, those relationships exist already, and therefore they will not be criminalized.

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

I realize that. I'm talking on an ongoing basis.

[Rick Dykstra, Conservative, St. Catharines, ON]

Yes, but you have to set the bar somewhere. You have to start somewhere. You have to draw the line and say from this day forward this is how the rules now work in this country.

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

That's not logical.