Justice Committee on April 17th, 2007

[The Chair, Conservative, Art Hanger]

Thank you.

I'll get to you in a minute, Mr. Ménard.

Mr. Comartin.

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

Well, I suppose to respond to both Ms. Morency's comments and the question from Mr. Bagnell, I don't agree with the statistical analysis that Ms. Morency has given. The reality is that the numbers are substantially higher than that for people who marry, particularly in the territories. I don't have the numbers in front of me, but to suggest that it's one or four cases is, I think, a misrepresentation of actual reality.

In terms of the rationale behind this, the reason I'm proposing this amendment is to deal with those exceptional cases. Again, I haven't looked at the American experience, so I can't comment on that; I don't know what the criteria are there. But with this amendment, if it went through, we would be allowing the continuation of the use of the provincial legislation. What we're doing is that whether it's a parent in combination with, as in Ontario, a senior bureaucrat, or in combination with a judge in a number of the other provinces--with the exception of the three that Ms. Morency mentioned--we're in effect letting somebody else decide whether this relationship is one that has the right to be sanct...or acknowledged--excuse me, we'll remain secular here--or recognized by the state, even if the relationship is one of an age gap greater than the five years that we're providing for here.

So that's the rationale; it's to deal with those. I agree with Ms. Morency to the extent that these are going to be the exceptional cases, but we've had them in our law for a long time. There are those exceptional circumstances. We in effect allow somebody else, not the accused person or the victim--if we can put it in terms of traditional criminal law--deciding whether this is going to be allowed.

If we pass this amendment, it in effect leaves the existing system in place to deal with those exceptional circumstances where you allow somebody else, whether it's a parent in combination with a minister, or in combination with a judge.... In some cases, I believe some of the statutes allow for the judge alone to make the decision. So it's to allow for that discretion to remain in the system.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Bagnell, does that clarify the point for you?

[Larry Bagnell, Liberal, Yukon, YT]

Yes, but I do want to clarify the statistic of 72 people per 100,000, which would mean in Canada we're talking about 3,000 cases. That's a lot of cases. If they were murders, that would be a lot of cases to just brush aside frivolously.

[The Chair, Conservative, Art Hanger]

Mr. Moore, this is in response to the numbers? Go ahead.

[Rob Moore, Conservative, Fundy Royal, NB]

Number one, 72 in 100,000 refers to common law and married. If we're talking specifically about married individuals, in the Yukon, for example, as a territory, no one under the age of 16 can ever get married. The age for marriage in the Yukon is 16. And as for the number of 15-year-olds, for example, who are legally married, according to Statistics Canada, in 2005, in all of Canada one male and four females were married. In jurisdictions like the Yukon, where the age is 16, no one under the age of 16 is legally married in the Yukon.

I think where there is a little discrepancy in the number is that this is the number of married; the 72 in 100,000 refers to people who would also be considered common law. So that's another basket of individuals, all of whom, I should say, are in a transitional exemption under Bill C-22. Anyone in that situation when this bill comes into force will continue to be allowed to be in that situation, but going forward, this bill sets the age of sexual consent at 16, with that five-year close-in-age exemption.

So if someone under 16 wants to get married, in this bill they're not prohibited from doing so. If they're allowed in their province to get married at under 16 in some exceptional circumstance or otherwise, this bill doesn't prevent them from doing that. But it does have a five-year close-in-age exemption. If it's within the five-year close-in-age exemption, there would not be any criminal fallout from that relationship.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Ménard, then Mr. Lee.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I'm a bit confused. I would like to put a question to Ms. Morency and Mr. Comartin.

First, it seems to me that there is a difference between matters of form and the substantive conditions that govern legislation on marriage. The provinces have jurisdiction over matters of form, that is to say how marriages are solemnized, for instance the publication of banns, and the federal level has jurisdiction over matters of substance. Among the substantive conditions, for instance, we find the degree of genetic relationship between individuals, which could prevent them from getting married.

I thought that the age at which one can marry was a substantive condition, but, given that the federal government had legislated on the matter, the provinces had been allowed to include provisions, for instance in the Quebec Civil Code, stipulating conditions regarding age, which are normally substantive conditions.

I would like someone to explain to me whether we consider that age, if ever there were a constitutional challenge and we had to go before the courts, is part of the substantive conditions surrounding marriage or whether it is considered a matter of form only.

Also, I thought that the bill as it stands currently would protect us against the scenario evoked by Mr. Comartin. I would like him to give us an example in order to enlighten us. What situation are you referring to when you talk about provisions of the bill that would not cover the case of married individuals who will not have reached the legal age set out in the bill when it comes into effect? How could that be possible? To what specific situation are you objecting? This isn't clear to me.

Mr. Chairman, as usual, you are not listening to me, which makes us like an old married couple.

My question is addressed to Ms. Morency and Mr. Comartin.

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

He did not hear you.

[Réal Ménard, Bloc, Hochelaga, QC]

No. We are a parliamentary couple. It goes without saying that we have separate bedrooms. Also, since he is a few years older than me, he is a bit hard of hearing.

[Voices]

Oh, oh!

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, with your permission, my question was addressed to Ms. Morency and Mr. Comartin.

[Carole Morency]

To confirm, the federal government does have authority over what we call the “formal capacity”. The legal term is “essential validity” of marriage, which includes setting the minimum age to marry. Provincial and territorial governments have constitutional jurisdiction over the solemnization of marriage: setting the procedures, how licences can be obtained. In the course of the provinces doing that, they prescribe a minimum age to marry.

Under constitutional law, if either level of government purports to legislate in an area that is outside its area of competency, it's ultra vires of that government. To the extent that there is an inconsistency between legislation at the two levels of government, the constitutional doctrine of paramountcy says that the federal law prevails.

In this case, Bill C-22 proposes to set a new limit for age of consent. How would that impact in terms of marriages? As Mr. Moore has said, it does not prevent a young person who meets the conditions prescribed by the provincial law from marrying, provided that the partner is less than five years older in age.

The whole objective of Bill C-22 is to provide a clear definition of when a relationship between an adult and a young person is exploitative. Bill C-22 is saying that we want to address the adult predators. Bill C-22 proposes that the adult predator be defined as a person who is five years or more older.

Bill C-22 says we know that certain relationships exist that are common-law relationships, or they're already married. They're established. They would meet our definition. They would have the exception. It would continue and then the young person would come of age.

Down the road, if Bill C-22 is passed, the message from Parliament is that anything over the age difference is an exploitative relationship; it's a sexual offence.

I don't know if you have specific examples. I don't have any to offer to the committee about how Bill C-22 might impact specific cases.

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

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

I would agree with Monsieur Ménard.

I agree with your question and your analysis: the form is the responsibility of the provinces and the substance is a matter of federal jurisdiction. However, the federal government has set the minimum age at 14 because of other sections in the Criminal Code. You are correct on that point.

Let me go to a scenario that I think I've thrown out before. In this scenario, that would be a crime under this section once it's in force, because you have a larger age gap than the five years.

Let's take a 15-year-old and let's do the stereotypical relationship of a young woman who is pregnant, with a male person who is 21. There's an application to the court, by way of consent from the parents of the girl. The parents have said they're prepared to allow this to go ahead. This is a relationship that they are prepared to acknowledge as a marriage. They apply to a court—this would be the scenario that you'd go through in Ontario in any event, or you could go to the minister in Ontario—and say this is the situation. They want this to be acknowledged by the state as a valid marriage, and they need the permission of the minister to do it. The parents are consenting, so would the minister consent as well? If he or she does, then the marriage is allowed.

If that scenario developed, it would now be in direct conflict with this law, and there's no question that the federal government has the jurisdiction once they occupy the territory. That's really what's happening here. It hasn't been occupied to this level, so we have effectively allowed the provinces to fix the age of marriage up to this point. We are now doing that at the federal level, with the age of 16 being a minimum age.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, I would like to make sure that I understood correctly. I am sure that everyone wants to understand as well.

You are saying that, in Ontario, a girl living with a 21-year-old guy, having sexual relations with him and becoming pregnant, would be breaking the federal law that we are about to vote on. But, still under Ontario rules, if she wanted to formalize her marriage, you are saying that even if her parents were in agreement, and she went to a minister, the marriage could not be recognized because federal law takes precedence. That's the situation that you are worried about.

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

I think that's a constitutional question, and I'm not sure I have the answer to it. The conduct, however, would still be a criminal act even if the marriage was acknowledged by the parents and the province. We could get through the totally ridiculous scenario of saying we're going to acknowledge the marriage but they can't have a sexual relationship as part of the marriage until the girl is 16 or 18 or whatever it would be. That's not realistic.

Aside from that, even if that marriage were allowed to go ahead by the province, the sexual conduct within the marriage would be a criminal act and the senior person in the relationship would be committing a criminal act subject to the penalties that Bill C-22 provides.

[The Chair, Conservative, Art Hanger]

Mr. Moore, in response.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm just thinking about Mr. Comartin's fact scenario. In Mr. Comartin's fact scenario, under Bill C-22, a criminal offence has already taken place. You have a 21-year-old having sexual relations with someone who, in his fact scenario, was 15 years old. We're not interested, I don't think, in creating a situation where someone is able, then, after a criminal offence has taken place....

The whole idea with Bill C-22 and raising the age of protection is to prevent people who are more than five years older than a 14- or a 15-year-old from entering into relationships with them. So to somehow say that now we can make it all better and pretend that a criminal offence didn't take place by getting married is defeating the purpose of what we're trying to do.

We don't want to see a rush to the altar by these individuals who are in many cases in a position where they could have great influence over this individual. It might be a situation of duress. We've heard examples of where sometimes the young person was in this situation and may not be cooperative, but they're with someone who is significantly older.

I fail to see how this could be accomplished practically. There's already a transitional provision in the bill. To somehow make marriage a blanket defence or to be able to retroactively go back and pretend an offence didn't take place because at some point in the future you're going to get engaged and married, would be defeating the purpose of the bill. Where do you draw the line? If someone gives someone an engagement ring, that offence didn't take place?

It's very clear in this bill. Right now in Canada the age of consent is 14. We've heard witnesses overwhelmingly say that this is too low, that there are adults who are preying on 14- and 15- year-olds. So this bill raises it to 16.

If we allowed our imagination to really get carried away, we could come into some situations, but the statistics that I've seen from Statistics Canada don't bear out the concerns. Number one, in most provinces you have to be 16 to be married anyway, and that's the age of consent in this bill. Number two, in provinces where you don't have to be 16, you can still get married, under this bill. There's no conflict whatsoever as long as you're within a five-year close-in-age exemption. If you're not within the five-year close-in-age exemption, then in your scenario a criminal offence has already taken place. And that's the criminal offence that this bill tries to address.

I understand the intentions, but I can't support creating confusion--I think this is really what this could create--with something that we want to try to keep a very strong and straightforward message on.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

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

I'd ask Mr. Moore not to dig his heels in just yet. I think we have to talk about this for another couple of minutes.

Firstly, earlier in our proceedings Ms. Morency provided some information. Mr. Comartin, in response, suggested that there must be some misrepresentation. I wouldn't want the record to fail to show that Ms. Morency was simply providing statistics that were publicly available and that there was certainly no.... I certainly didn't see any misrepresentation. I'm not sure that Mr. Comartin intended--

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

It was my choice of words.

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

He would use a different word now if he had the chance, and he will probably have the chance.

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

Yes, I didn't mean it in the legal sense, for sure, Mr. Lee.

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

Secondly, I'm going to give notice that I intend to move an amendment to the title of the bill, not to the body of the bill. It's really simple. It now refers to “age of protection”. I'm going to suggest that it refer to the age of consent, and I'll explain why later.

Mr. Moore and Ms. Morency have suggested that the proposed amendment would allow a retroactive decriminalization of sexual activity if the parties involved got married. As I read this, that's not the case. The exemption for being married only applies if the parties were married when the alleged offence took place. That is how I read the amendment, and I can't read it any other way.

Mr. Moore seems skeptical about that, but the purpose of this amendment is to remove from criminalization individuals who are legally married at the time when there may have been illegal sexual activity. The point is that they are legally married, and we can envisage, by the wording of this bill, the criminalization of two individuals who are married legally.

This bill is not about marriage; this bill is about sexual activity. We are, by the current wording of this bill, criminalizing sexual activity between two consenting persons who are married. Now, this is a very small number of people. There are only four or five in the whole of Canada that we're aware of now, plus other individuals who may be recognized as spouses in common law, the circumstances of which are already outlined in the bill.

So this is the only issue here for us, because the current government bill already exempts from criminalization individuals in this category who are married on the day the section comes into force. It doesn't deal with people who may have this problem later on in time. Mr. Comartin's amendment is intended to deal with those people later.

I'm of the view that if we, in our work here, can see a criminalization that is not intended, then we should not allow that bill to go forward. We should change it in a way that removes the non-intended criminalization. But if it is the view of members here that we wish to criminalize two consenting persons who are married in the future, albeit only a half a dozen or ten over time, then go ahead and pass the bill.

I wouldn't do that, and I would not shovel our unfinished business, our unintended criminalization, over to a criminal court for fixing, because they won't be too happy about that. They would rather say to Parliament that if we see a problem, we should fix it. If we see an overlap, if we see an inconsistency, we should fix it. If we see a constitutional problem, we shouldn't give it to the courts, we should fix it before it gets there.

Mr. Comartin's amendment comes down to this. The government has already fixed the problem of the criminalization of two persons who are legally married, one of whom is underage. The question is whether we will extend that protection, in the future, to other persons who are similarly legally married, one of whom is under the age.

Thank you.