Evidence of meeting #62 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 marriage.
A recording is available from Parliament.
9:15 a.m.
Conservative
The Chair Conservative Art Hanger
I call the Standing Committee on Justice and Human Rights to order pursuant to our order of reference of Monday, October 30, 2006, Bill C-22, an act to amend the Criminal Code and to make consequential amendments to the Criminal Records Act. Today, Thursday, April 19, 2007, we continue our examination of Bill C-22.
We again have with us Carole Morency, acting general counsel, from the Department of Justice.
Mr. Comartin, you have a submission, I understand. Perhaps you could present that.
9:15 a.m.
Conservative
The Chair Conservative Art Hanger
As a point of clarification, amendment NDP-1 is on the floor. You have presented that and I know you want to address it, so go ahead.
9:15 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Yes, Mr. Chair.
You will recall that at the end of the last meeting there was a good deal of discussion around amendment NDP-1, and a decision was made to put it over to this morning, because of some of the exchanges that went on, to see if there was an alternative. That is what I am presenting this morning.
The amendment that I'm proposing this morning would replace amendments NDP-1 and NDP-2. So I will indicate at this point that I'm withdrawing amendments NDP-1 and NDP-2 and replacing those with the new form that you have in front of you. It's not numbered.
9:15 a.m.
Conservative
The Chair Conservative Art Hanger
Before you begin, I just want to put this before the entire committee.
Is that okay with the committee, for Mr. Comartin to withdraw amendments NDP-1 and NDP-2?
9:15 a.m.
Some hon. members
Agreed.
9:15 a.m.
Conservative
9:15 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
If I can go back to amendment NDP-1 to this extent, it was an amendment to proposed subsection 150.1(2.2), which would have been dealing, in effect, with the transition paragraph in the existing draft bill. I've moved the amendment that I was proposing for proposed subsection 150.1(2.2) into proposed subsection 150.1(2.1), thereby creating what in effect are new defences to the charge in sections 151, 152, 173, and 271.
The end result of this amendment would be to create what in effect would be two new defences in addition to the five-year near-age defence, if the couple was married or living...that's in the new paragraph 150.1(2.1)(b), or in (c), the relationship was a common-law relationship or a child had been conceived of the relationship, always with the provision that the relationship cannot be one that's abusive or exploitive, which is what paragraph (d) deals with. So that's a continuation of what's in the existing bill.
If I can add to this, the effect is that if we were to pass this amendment, I would then be moving to delete proposed subsection 150.1(2.2), because it would be redundant. At that point, it would no longer be necessary. The provision that's in the existing bill would no longer be necessary. I think that would be an inevitable result if we passed this amendment to proposed subsection 150.1(2.1).
If I can conclude with this, what I'm addressing here is the concern that I raised on Tuesday and the debate we entered into around the roughly 3,000 couples a year who are married or living in a common-law relationship. We don't know—we couldn't get that information—how many of those relationships may be of less than a five-year age differential. What I'm in effect attempting to do here is to protect those relationships from criminal sanction. As much as we did in the committee's work, which was fairly extensive on this point, we simply could ascertain how many of those in those marriage or common-law relationships were in a greater distance of age than five years. That's what it's designed to do, to protect us from criminalizing those relationships.
I think those are all my comments. Thank you, Mr. Chair.
9:15 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Comartin.
Ms. Morency, did you have some comment to make in reference to those particular amendments?
9:15 a.m.
Carole Morency Acting General Counsel, Department of Justice
Yes, I do. I think this also will help to clarify some of the information that we had before the committee on Tuesday.
Reference was just made to the number of couples; it was 3,000, or something in that range. Between the last committee hearing and today I did follow up with my colleagues at the Canadian Centre for Justice Statistics, the two witnesses who appeared before this committee, Karen Mihorean and Lynn Barr-Telford. We discussed the numbers that had been provided to the committee, which were that 0.07% of 15-year-olds were estimated to be involved in married or common-law relationships, and she had said as well that translated into 72 per 100,000. That's not for the total population of Canada, but for the estimated population of 15-year-olds.
On that point, to clarify, we don't have these data yet from the 2006 census on age and sex. What StatsCan does is work with the data that are available from the last census, 2001, and then project what the estimated population will be of that age group for the year in question. If you follow that through, what they've projected is that the 0.07% gives 316 as the number of 15-year-olds estimated to be involved in a legally married relationship or in a common-law relationship for 2006. That breaks down to 108 15-year-old boys and 208 15-year-old girls.
It's correct, as has been noted this morning, that we don't have the breakdown of what percentage of those relationships would fall within the five-year close-in-age exception as proposed by Bill C-22, or how many would now be caught because the partner is more than five years older. Bill C-22 contemplates those relationships that would exceed the five-year close-in-age exception and provides a transitional defence for those existing couples who meet that definition. Of the 316, based again on Statistics Canada's projected estimates of how many were legally married at age 15, the number I provided on Tuesday to this committee was five in total for Canada for the year 2005. Obviously it is not necessarily an exact science. If we take the 316 married or common-law projected for 2006 and take off that number of perhaps five--a handful--it leaves almost the entire group of 15-year-olds involved in a common-law relationship.
In the time I had available to me before today, I can't confirm to you with certainty that there are no 14-year-olds at all in those relationships, or that StatsCan doesn't collect the data for 14-year-olds who may be married. Prior to this it was my understanding that they don't collect the data on 14-year-olds, but I can't confirm it. The best information I can provide to the committee is that perhaps in the neighbourhood of 300 common-law relationships currently exist, and a handful of legally married.
From there, in terms of trying to understand if there will be a conflict between Bill C-22 and the age of consent and how provinces deal with age under their solemnization legislation, I have said in providing an overview to this committee that under the provinces' and territories' solemnization legislation--that is, who can obtain a licence to marry--three provinces do not allow anyone under the age of 16 to marry or to obtain a licence. Those are Quebec, Newfoundland and Labrador, and the Yukon Territory--so in three out of the 13 jurisdictions, it's never.
In the rest of the jurisdictions, four will grant an exception under the age that they set--meaning someone under the age of 16, or 15 in the two other territories--provided the female is pregnant. That means Alberta, the Northwest Territories, and Nunavut—in those two territories the age is 15 for solemnization of marriage—and also Prince Edward Island; it's 16 there and 16 in Alberta. In those four jurisdictions the decision is made by a judge, and again, it's on the basis that the female in question is pregnant.
If I translate that to how this plays out with Bill C-22, that means the person seeking approval to marry has already been the victim of a sexual assault under Bill C-22.
In the remaining provinces the criteria change a bit for one that's similar to what I've just described--a female is pregnant. In Manitoba, basically the court has the discretion to issue the licence, where the young person is under the age of 16. In 1970 the legislation used to be that if the girl was pregnant, it was an automatic right. They changed the legislation. So it's no longer an automatic entitlement; the judge has to consider the circumstances in the case.
In New Brunswick, for example, the marriage has to be shown to be proper. In Nova Scotia, it's expedient and in the interests of the parties. In Ontario, the circumstances justify the issue of the licence. In Saskatchewan, a court judge can do so retrospectively, if the parties have already consummated the relationship or have lived together by the time they apply for the licence.
To sum up the state of the marriage laws in the provinces, the majority either do not allow or only allow under the age of 16 where the girl is pregnant. The others look at the circumstances of the case.
I'm not sure if this would help you, but I can give you an example of how a court goes through the considerations of a marriage licence application.
There is a decision by the name of Al-Smadi, father and extra friend, from 1994, Court of Queen's Bench of Manitoba in Winnipeg. In this reported case, there was a 15-year-old girl seeking to marry her 27-year-old boyfriend. She was living with her father. The father was consenting to the application. The question before the court was whether it was appropriate in the circumstances to issue the licence to this 15-year-old girl in that relationship.
In the first application there was no evidence before the court that she was pregnant. The court, in that case, decided against approving the marriage. It wasn't in the interest of the child in that set of circumstances.
Either she knew she was pregnant and had not disclosed it or she subsequently became pregnant and the matter returned to the court. Recognizing again that the court had the jurisdiction to grant the exception, to issue the licence, the court in those circumstances did allow the marriage to proceed because she was pregnant at that point.
I have not been able to identify a lot of reported cases. I don't mean this to be cited as an example that they're all like this, but it's an example that the committee may find helpful in their deliberations.
Yes, there are some couples who would be affected right now if Bill C-22 were to come into force. Bill C-22 contemplates that and provides an exception.
I believe a question on Tuesday was this. If you don't meet the definition, for example, of common-law relationship--the couple hasn't been residing together for one year or more or they haven't been residing together for a shorter period of time and they aren't having a child or haven't had a child together already in that relationship--what happens?
Obviously, when Bill C-22 was being developed, the considerations were that if you were going to propose a change in the law, there was going to have to be a line drawn, and how would you justify where the line was drawn?
There is a varying treatment of what constitutes a common-law relationship across the country and the provinces for the purposes of family law. The Criminal Code already provided a definition of a “common-law partner”, which was a conjugal relationship of one year or more. So Bill C-22 says that there is an established definition, an established understood context, but recognizes, again, that you could have a shorter period of time and you could have a child born of that relationship or expected, which is not inconsistent with what the provinces do in terms of how they establish common law for provincial purposes.
So Bill C-22 will affect some existing relationships. It does provide exceptions for those limited, established relationships. It will prevent or criminalize new relationships formed after Bill C-22 comes into effect, on the basis that Bill C-22 would say if you're more than five years older than a 14-year-old or 15-year-old youth, it's against the law. That would be the intention or the objective of Bill C-22.
Two years ago I had spoken to this committee on the former bill, Bill C-2, on the protection of children. We had some information provided to the committee that looked at what we knew about the age of the partners of these 15-year-old youths. The information had been provided to this committee in a chart form that had been prepared by Statistics Canada, the Canadian Centre for Justice Statistics. It generally showed that most of the partners who were identified through the 2001 census data were over the five-year close-in-age exception. We can't explain the nature of that.
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'm sorry, I don't want to be irritable, but a cell phone went off. Could you go back over that? I didn't catch it.
9:30 a.m.
Acting General Counsel, Department of Justice
Two years ago, in the context of proceedings under a former bill, Bill C-2, the Department of Justice had furnished some information to the committee that talked about what we knew about 15-year-old youths in relationships, either legally married or common law, and the age of their partners.
I believe Mr. Comartin referred to this chart previously, and I know others have looked at it. I can table a copy, if its publicly available information, in English and French, with the clerk.
The information shows that for the 2001 census data, for 15-year-old youths who had reported being in a married or common-law relationship, the majority of their partners were over the close-in-age age group and were more than five years older. We don't have any data to explain how or why that is.
There's no question that we have limited data, but there is some data to show and confirm to the committee that some relationships will be affected. Bill C-22 contemplates that. Beyond that point, further relationships will be affected. The object of the bill is to prevent a 25-year-old adult from moving in or engaging in any kind of sexual activity with a 14-year-old or 15-year-old youth.
One last point I will remind the committee of is that the definition of sexual activity within the criminal law context is not only sexual intercourse. That's what many people have in mind when they think about these types of relationships. It's all sexual activity, ranging from touching through to and including sexual intercourse. It may be that a couple hasn't perhaps consummated a relationship, but they may still be involved in a sexual relationship.
The intent of addressing this through Bill C-22 is to provide comprehensive protection for 12-year-old or 13-year-old youths and in fact all Canadians. If it's non-consensual and it's a whole range of sexual activity, it would apply and would be caught by Bill C-22.
9:30 a.m.
Conservative
The Chair Conservative Art Hanger
Mr. Comartin, do you have something you want to add in reference to your amendment?
9:30 a.m.
NDP
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
This is something I was thinking about in terms of the marriage figures we got from Statistics Canada, the number five, four or five.
Did you have any discussion with them as to whether it recorded marriages in the jurisdictions where you can still marry at 15 years old? Is it one or three?
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
There's only one of the territories where the marriage age is 15 years. Is that correct?
9:30 a.m.
Acting General Counsel, Department of Justice
There are two, the Northwest Territories and Nunavut. They have the same legislation.
9:30 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
The reason I'm saying this, Mr. Chair, is that when I was personally practising family law, I did a number of these applications. I've done more than five in my career. I'm having a hard time believing the Statistics Canada's figure of five.
Somebody might point out I'm a little older than most of the people sitting around this table, and sexual mores have changed in the last decade or two, but I don't think they've changed that dramatically.
Did you have any sense from them that the only recordings they were giving were those of 15-year-old individuals who could go on their own without any permission, as opposed to those who needed permission, and Statistics Canada was not recording those?
9:30 a.m.
Acting General Counsel, Department of Justice
Again, the legally married estimate that I provided on number five is based on a projection from the 2001 data. If I look at my chart for those who are 15 years old, I had said for all of Canada there were four females and one 15-year-old male. It was projected to be in Ontario. There were four females and one male in Ontario, where the age is 16.
Obviously, I'm not from Statistics Canada. But when data like this is reported, in terms of trying to understand the data, one of the difficulties we have is that persons could report on the census that they're married. A 15-year-old youth could say that, but he or she may have actually married in a different jurisdiction, and it wouldn't be reflected.
You could say there's a 15-year-old youth who's married in Quebec. How can that be? He or she may have married somewhere else, but we can't say that. It would be supposition or speculation.
9:35 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Those statistics show no marriages of 15-year-olds in the two territories?
9:35 a.m.
Acting General Counsel, Department of Justice
Not based on those projections. I had previously some indication of marriages, recorded through vital statistics, that Statistics Canada was able to give me, but they go back quite a number of years.
Going back to early 1990s, the numbers were more. For sure they were higher in the nineties than what I've just indicated to you, the five. I can't explain why that would be. Probably it's because more people would be involved in a common-law relationship. That might be a reasonable conclusion to draw from the 316 number we have.
9:35 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
I just have a few questions for Mr. Comartin, questions of clarification.
One, the law we are looking at basically would grandfather the pregnancies, the marriages and the common law. What you're basically doing is making those exemptions permanent so that in future.... And it sounds like instead of 3,000, it may be a couple of hundred people a year who normally would get into these types of relationships. Now those will be legal. For instance, if someone can hide the fact they're doing an illegal relationship for a year, then they're common law, and they would have a defence. I want to make sure that's what this amendment does; I think that's what it does.
Second, I thought the reason we had moved to Thursday was that you were going to try to tone that down a bit to make it something that would be acceptable to the Bloc. I thought that was the reason we'd put it off until Thursday.
And third, if this doesn't pass, would you be willing to debate just having the marriage as the one permanent exemption and not the other two?