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.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I want to thank Mrs. Morency for the clarification she's brought.
In the context of the amendments Mr. Comartin is suggesting, I want to be clear in my own mind, so I'm going to give a hypothetical situation.
On December 31, 2007, a conjugal relationship begins between a 15-year-old girl and a 20-year-old male. On January 1, 2008, Bill C-22, as it now is--if the version the government has tabled is adopted--enters into force. On February 1, 2008, a month later, criminal charges are laid against the 20-year-old male, because the relationship is illegal, if I'm not mistaken, or you can answer that. On March 1, 2008, the young woman becomes pregnant. He's been charged, but he's out on bail. They managed to hook up at least once. She doesn't know she's pregnant. By the time he comes to trial, she's out to here.
In that circumstance, if in fact when the legislation came into force, given the relationship, he was committing a criminal act because the conjugal relationship began before, or the first sexual contact began--she's not pregnant when he's charged, she does become pregnant following the criminal charges--would they be able to go before a judge, in the jurisdictions that allow for “under-16 who are pregnant”, to apply for a marriage licence? And would a defence be provided him?
Acting General Counsel, Department of Justice
In the precise scenario that you've given me, he probably wouldn't be charged, because he's probably within the five years, if he's just over.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
No, he's over. He's 21, she's 15. That's six years.
Acting General Counsel, Department of Justice
Well, you said 20, but anyway....
Liberal
Acting General Counsel, Department of Justice
It could happen, for sure. You have to think about the practicalities, and I think that's what we're trying to do. In a situation like that, where the accused is so close in age, within the five years or just over, in what circumstances would a charge be laid in those cases, right? Because the police have to have reasonable grounds that an offence has been committed. They could probably meet that test in this case. Would the crown proceed with a prosecution in that case? Again, they'd have to have a reasonable prospect of securing a conviction. I know the Supreme Court doesn't look favourably on individual police discretion as opposed to the rule of law, but in those circumstances I think police and crown would be exercising some discretion in terms of whether they could meet the burden they would have to meet in that situation.
Of course, those are always going to be the tough cases that are going to come before us. I think in that case, based on how we see cases proceeding, and other sexual assault defences--because no young person wants to be considered a victim in a sexual assault trial, particularly in this type of situation--I can't predict exactly how it would happen. Technically, under the law, the day the older person is five years or more older, it would be an offence. But even today, even before that “five-year” happens, it could possibly be an offence under the existing section 153, because the court's directed to look at the age difference.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Sure. Thank you.
I have another question. If Mr. Comartin's amendments were to be adopted by this committee, and then Bill C-22 become law, as amended by Mr. Comartin, if my understanding is correct, the 21-year-old would not be in a criminal situation if he were able to establish that the conjugal relationship began prior to the day the law came into force but was less than one year. Is that correct?
Acting General Counsel, Department of Justice
Just to be sure we're talking about the same situation, the 21-year-old who's applied for or is in the situation where they've applied for a marriage licence--
Liberal
Acting General Counsel, Department of Justice
Okay, are you talking about common law?
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Yes, we're talking about the same scenario. On December 31, 2007, the conjugal relationship begins between a 15-year-old girl and a 21-year-old male. We can say 26-year-old, whatever; it's a male who's more than five years older in age. On January 1, 2008, Bill C-22, as amended by Mr. Comartin, comes into force. That amendment that Mr. Comartin is proposing would result in this relationship not being deemed criminal.
Acting General Counsel, Department of Justice
It would not be considered criminal if he meets the definition of common law here or if she's....
Okay, they're actually cohabiting, she's pregnant, but they haven't been living together for a period of one year, yes.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
So if she's not pregnant, but they've been cohabiting for less than a year, it would be criminal.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I see the logic of providing a defence, a very limited defence, as is proposed by the amendment, but I'm not inclined to support that the defence include the category of cohabitation simply as cohabitation. Because what we're actually trying to criminalize here is cohabitation when they're not close in age. We're actually saying, from a public policy point of view, that the 25-year-old cannot cohabit with a 15-year-old or a 14-year-old. We're saying that it's criminal.
So to reach back and say that it's okay if she's pregnant or if you can make it last 12 months simply induces the couple to either have a pregnancy or make it last 12 months. But we're actually trying to criminalize that circumstance. We want it to be criminal. We don't want it to be there. So I'm not inclined to provide a permanent defence for that, although we have provided a limited-time, transitional defence for that type of relationship, and that makes sense.
What I am inclined to favour is an exemption where there is a marriage, but I do that only because I think that in every case where a marriage of this type exists, it's because a judge has already said yes, there's a marriage. And that would be a marriage legitimized by the state through a court, or maybe legitimized by a religious ceremony. It may be the full monty of a marriage, and yet, if we don't change the law the way we have it now, we're going to reach back and criminalize the marriage.
Now, some will argue that by criminalizing it there will be a lot fewer of these marriages, because the judge who would approve such a relationship would say that we're actually not very inclined to have these relationships, so he's not going to approve the marriage. But on the theory that the provinces do allow judges to sanction these relationships as marriages, I'm very disinclined, on a public policy basis, to reach back and criminalize what a judge is otherwise capable of doing.
I would limit the exemption only to the situation where the couple is married. If they're married, that's cool. But you have to get married, and in order to get married in this circumstance, you have to go to a judge. And I say that the Criminal Code should recognize that if a judge says it's okay to marry, then I don't want to reach back and criminalize what a judge is otherwise able to do.
So I would support the continuing defence for a couple that is married, but only for that.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Mr. Chair.
I agree with much of what Mr. Lee has just said, and Mr. Comartin was right on one of the points I was going to make, so thank you for making it for me.
I think, very clearly, in the case of marriage or common-law, we're not reaching back with this legislation, because we have the transitional provisions. The practical reality is that in a few jurisdictions in Canada, if you're under 16, you just flat out cannot get married. So the marriage exemption wouldn't apply.
In other jurisdictions, where a minister or a judge looks at the situation.... For example, in Nunavut and in the Northwest Territories, for them to grant that exemption, the female has to be pregnant. So in order for the marriage to be granted for that person who's under 16, the offence already has to have taken place.
