Justice Committee on April 19th, 2007

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

I forget what your first question was, but the answer I wrote down was “yes”.

No, the intent is to make it prospective, not just retroactive, not just grandfathered.

As to question two, with regard to toning it down, I did not think that, actually. My response here, in terms of changing the amendment, was that, in response to the suggestion from Mr. Lee, it was more proper from a drafting standpoint to put it in as a defence rather than to try to deal with it in this transition paragraph, as the government has done.

I thought I'd made it clear on Tuesday that what I was trying to do was provide protection to what I thought at that time was the potential for as many as 3,000 relationships to be criminalized on an ongoing basis. As I said to Mr. Dykstra, I think it's unrealistic for us to expect that at least a good number of those are not going to occur, and to criminalize them, I just wasn't prepared to do that.

Third, Mr. Bagnell, would I be satisfied with just the marriage? I guess my answer would have to be that you'll have to move that amendment if mine doesn't go through. Or perhaps you should move it now and delete the other parts of mine.

I'm having some difficulty accepting, as you can tell from my exchange with Ms. Morency, that there are only five marriages. I think we're talking a substantially larger percentage of those 200 to 300 annual relationships that we're trying to deal with here. I think there are more marriages in there that Statistics Canada just isn't catching. I'm not going to suggest it's even 50%—I don't think it is—but I would guess the rest of the numbers are about 50 to 100, somewhere in that range.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I want to make sure that I understand because we will have to vote afterwards. We will have to dispose of these Bill before the end of today's meeting.

My party has some concerns about your amendment. I took note of the 316 figure. Some 15-year-olds are in a relationship with persons who are more than five years older than them. If the Bill is passed, their relationship could be criminalized.

Mrs. Morency, will these people get an exemption under a grandfathering clause? Is Mr. Comartin right to say that, if the Bill is passed, some 15-year-olds who are married to persons more than five years older than them and who not caught by the official statistics, for various reasons, could see their relationships criminalized? How do you interpret the scope of this amendment? Would you recommend that we accept the amendment? There are two interpretations and two series of figures.

[Carole Morency]

If the relationship existed when Bill C-22 comes into force, those persons in relationships with people more than five years older than them will have a line of defense.

But if it's a marriage, and common law, if a couple was together for one year, or there was a child, and it existed and it met that definition when Bill C-22 comes into force, again, an exception will protect them.

In a short period of time, the 14-year-old or 15-year-old will become 16 years old. So the exception will cover them off to that point.

If the relationship forms after Bill C-22 comes into force, or if it doesn't meet the common-law definition--so they've lived together for less than a year and there's no child--it will be criminalized under Bill C-22. But on the point about whether there could be a permanent exception just to marriages and not also to common-law relationships, that would raise charter considerations.

[Réal Ménard, Bloc, Hochelaga, QC]

You are saying that, when the Bill comes into force, some people who are more than five years older than their partners could marry or be in a common-law relationship. You want the committee to provide them with a line of defense if they are accused but this would go against the very purpose of the Bill. If we find that this is justified and that the age difference does not exceed five years, what would you want to protect from the point of view of marriage and of common-law relationships?

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

If you allow me, I will answer in English to make sure that I express my thoughts correctly.

[Réal Ménard, Bloc, Hochelaga, QC]

Sure, we have interpreters.

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

It seems to me that what I'm doing here in my position is, one, I'm agreeing that we should raise the age of consent in this country across the board to 16.

We should make some exceptions to that, significant ones in the five-year near-age defence. That's going to catch a significant number of relationships. We saw the numbers: 40,000 to 50,000 will be caught; that is, the near-age defence will protect those relationships.

What we're down to is a very small number of relationships for which I also want to provide a defence. One is the married, on an ongoing basis, people who have gotten married. You can see it any number of ways, even some coming in as refugees from other countries already married, not voluntarily. I know that in the immigration laws we don't recognize those marriages if one of the members of the couple is under 16, but if they're refugees, they may get into the country. So we'll have some of those.

We will have some, and I'm going to use the Territories as an example, where marriage may in fact be.... Granted, we're going to be into a constitutional fight for those. And again, we're talking small numbers.

Then we're going to have, and this is where the larger numbers are, probably 200 to 300 a year.... I don't see those common-law relationships stopping, as much as we're trying to protect it, and in the vast majority of cases those relationships are just going to be slightly over the five years, like the case that you heard from Winnipeg.

[Réal Ménard, Bloc, Hochelaga, QC]

Why? I am just trying to understand, Mr. Chairman. We are talking of common-law relationships after marriage. If a 15-year-old has a partner, either through marriage or through a common-law relationship, who is more than five years older, he or she will be accused of a criminal act.

[Some members]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

You want us to pass Bill C-22 with its present clauses but you want us to authorize a criminal act. Why would someone start a common-law relationship and start having sexual relations knowing that it is a criminal act?

I would also like you to explain your proposal relating to refugees, which I do not understand either.

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

In the refugee situation you would have somebody who in fact is married and has fled here from another country and one of the members of the couple is under 16.

[Réal Ménard, Bloc, Hochelaga, QC]

If they are refugees, the Immigration and Refugee Board will grant them permanent residency for humanitarian reasons and they will then start a recognition process that will allow them later on to become citizens.

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

As soon as they enter the country, their relationship is criminal.

[Réal Ménard, Bloc, Hochelaga, QC]

With your indulgence, Mr. Comartin, I would like to check that.

Mrs. Morency, is Mr. Comartin's scenario exact? If the Immigration and Refugee Board were to grant permanent residency for humanitarian reasons to a person after Bill C-22 comes into force, for example in December 2008, and if that person was in a relationship that did not correspond to our legal rule relating to age, would that person be committing a criminal act, even though the marriage might have been celebrated in another country or the relationship might have been established before the person arrived in Canada?

[Carole Morency]

Under the Immigration and Refugee Protection Act, Canada does not recognize a marriage or a common-law relationship of a foreign national if he or she is under the age of 16. That's what the law is, federally, and that's what Bill C-22 would be consistent with. It wouldn't necessarily prevent them from having access to Canada through the refugee process, but they wouldn't recognize the marriage or a common-law relationship for those purposes.

[Réal Ménard, Bloc, Hochelaga, QC]

So, they would be penalized, as my colleague said.

[Carole Morency]

That is my understanding.

[Réal Ménard, Bloc, Hochelaga, QC]

So, Mr. Comartin is right to be concerned. I am not suggesting that you should have the same level of concern but he is right to raise the issue before the committee.

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

I am a more sensitive person.

[Réal Ménard, Bloc, Hochelaga, QC]

That is well known and it makes you extremely endearing.

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

Thank you.

[Réal Ménard, Bloc, Hochelaga, QC]

I will stop there, Mr. Chairman. I do not understand the second part of your statement when you say that you want persons to be able to establish a common-law relationship even though they know they will be committing a criminal act. I understand your position relating to refugees but I do not understand the second part.

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

I can answer that, Mr. Chair.

There are really two parts to that. My primary concern would be if there has been a child who has been born or is to be born of that relationship. So it's a relationship that's in existence and the female in the couple is pregnant or has had a child. It's worrisome that we would criminalize that, even if the age is greater than five years. We're looking at it as a stable or semi-stable relationship and then criminalizing it. That one gives me great, great concern.

To a lesser degree, and I'll concede that, if they have been living together for a year or longer and we have a stable relationship, should we be criminalizing that? We're recognizing--I'm sure I'm going to hear this from Mr. Moore--that as the relationship starts it is a criminal offence. It's the reality of what we're going to be faced with. There are going to be cases, which are going to come before criminal courts, where we have a relationship of a year or longer, there is no child, and we're going to say that's a criminal act. We're still going to see those cases. I've practised enough family law and criminal law to tell you that we can draft and pass whatever laws we want, but in the extreme cases we are not going to be able to avoid this.

I guess this is the other point that Mr. Moore will make, so let me anticipate it. Will that in effect undermine the whole legislation? I don't think so. The message is going out very clearly from this bill, from this House, that we are raising the age of consent in this country. So it will be the exceptional cases, the 200 to 300 a year, that we're dealing with.

[The Chair, Conservative, Art Hanger]

I think you've covered just about everybody's opinion so far.

Ms. Jennings.