Mr. Speaker, I am pleased to have the opportunity this morning to speak to Bill C-278, an act to amend the criminal code respecting prohibited sexual acts, introduced by the hon. member for Calgary Northeast.
Bill C-278 proposes to amend in isolation several sections of the criminal code where the general minimum age of consent is part of the definition of sexual offences involving a child victim. The current age of consent to most forms of sexual activity is 14, but there is an important exception for consensual sexual activity between young people within 2 years of age and under 16.
Bill C-278 proposes to increase the general age of consent to sexual activity from 14 to 16. The age would also be raised to 16 in the existing exception. The proposed bill would also raise the age to 16 in connection with the powers of the courts to make prohibition orders against offenders who are convicted or who are discharged on conditions in a prohibition order of certain sexual offences against a person under 14.
Bill C-278 reflects valid concerns about whether the current protection provided to young people in the criminal code is sufficient. There appears to be general agreement that the current minimum age consent for sexual activity, which has been in the code for more than 100 years, should be reviewed. At the same time care must be taken that any changes provide comprehensive protection and do not accidentally create an inconsistency in the code or criminalize the consensual sexual activity of young people.
Permit me to raise three distinct points. First, as we know, in November 1999 the Department of Justice released a consultation document entitled “Child Victims and the Criminal Justice System”. The document examines a wide range of possible changes to both the criminal code and the Canada Evidence Act to improve public safety for children. Although the major responsibility for child protection lies with the provinces, there is a key role for the criminal justice system in supporting provincial and territorial efforts in this area.
The consultation paper is a collection of suggestions for change put forward by provincial and territorial officials and others working with children. Three main areas are under consideration: the creation of further child specific offences, including the age of consent issue; sentencing to protect children from those who might reoffend; and additional means to facilitate children's testimony.
The release of the consultation paper invited comments from all Canadians. The public consultation phase is now complete and efforts are being made to complete the provincial and territorial consultation with their co-operation as quickly as possible.
It has been argued that the general present age of consent, which is 14, is too low to provide effective protection from sexual exploitation by adults. The relatively low age allows pimps, for example, to seduce young girls, with the intention of luring them into prostitution without fear of prosecution.
Social workers are concerned that many young people in care may be vulnerable to be targeted by pimps. Canada's age of consent is lower than that of many other countries that use 15 or 16 as the minimum age. However the bill put forward by the hon. member for Calgary Northeast is premised on the belief that the issue is a straightforward one and that all that is involved in addressing the complex issue of age of consent is simply to change the age. With respect that is not the case.
Protecting our children goes beyond a simple and arbitrary increase of the age of consent to sexual activity. It means addressing the broader issues of the safety and well-being of our children. Our objective is to develop and maintain effective, comprehensive measures to support provincial and territorial measures to improve public safety for children and to protect children from serious injury and even death at the hands of adults.
The achievement of this objective rests in a collaborative effort by the provinces, the territories and the Government of Canada. While the provision of services to children who are in need of protection is the responsibility of the provinces and territories, the assurance that appropriate offences and penalties are available for serious harm done to children remains the responsibility of the Government of Canada. By targeting extreme forms of harm through the criminal code, the Government of Canada would provide strong support for provincial and territorial initiatives to protect children.
However Bill C-278 does not maintain a comprehensive approach. It leaves a reference to age 14 in several provisions, for example section 281 dealing with the abduction of a person under age 14, and even more critically perhaps in section 810.1 which allows a court to issue a prohibition order if there are reasonable grounds to suspect that an individual will commit a sexual offence against a child.
The provision in section 810.1 has proven to be an effective tool by some police forces and high risk offender teams in providing community monitoring and control of pedophiles. It is unfortunate that these two sections have been left out of the bill. It is also unfortunate that the only remaining child testimony provision that refers to age 14, section 486 which allows child witnesses to have available to them a support person while they are testifying in court, should also have been left out of the bill.
Second, the bill does not address the criminal code consequences of raising the general age at which sexual activity with young people would be criminalized. With respect, by not addressing this issue, Bill C-278 proposes an amendment that is inconsistent with the other relevant sections of the criminal code.
For example, even though the complainant's age would be raised to 16, there is no consequential change to the age of the accused in the exception that prevents criminalizing consensual sexual activity between young people close in age and under 16. The result is that a teenager over the age of 16 who has consensual sex with a person under 16 but who is close in age would be considered to be engaging in criminal conduct. At the same time a younger teenager would be able to consent to sexual activity with a person close in age. This outcome would appear to be not only discriminatory but also contrary to common sense.
The consultations undertaken by the Department of Justice have generally indicated that if the age of consent is raised the close in age exception for these older children must be broadened, perhaps to include within the exception consensual sexual activity between children who are three or even four years apart.
That would allow a child who is just before his or her 16th birthday to engage in consensual sexual activity with a young person who is approaching his or her 18th or even 19th birthday. Otherwise that behaviour, which may be considered inadvisable but certainly not criminal by most Canadians, would be subject to prosecution under the criminal code. Bill C-278 does not address the issue but rather could create confusion and criminalize the behaviour of all children over 16 years of age even where the behaviour was consensual.
Third, the bill does not address the broader implications that arise from the amendment to the general age of consent. Since legislative changes do not take place in a vacuum, we must be aware that a change in the age of consent may have an impact on other legislation.
For example, such changes may impact on the age 14 for providing assistance to child witnesses, as I mentioned a minute ago, for competency to testify in the criminal code and the Canada Evidence Act, and even for marriage legislation in the few provinces that still allow children under 16 to marry.
The question is: Would an amendment to the age of consent to sexual activity require amendments to other age related provisions of the criminal code and other statutes? Furthermore, any arbitrary changes in the criminal code would be inconsistent with the government's commitment to consult with the provinces and territories before introducing amendments intended to support its efforts to protect children from abuse, neglect and exploitation.
During the consultations several jurisdictions voiced concerns about proceeding too quickly on this question and accidentally criminalizing the behaviour of young people.
The Minister of Justice cannot support Bill C-278 for three reasons.
In conclusion, the issue of age of consent is a real concern. Children deserve to live in a safe society and be protected from all forms of exploitation by adults. At the same time, to be effective, people in the community and at every level of government must work together because we all have an important role to play.
We believe all Canadians should be given an opportunity to express their views on the issue. We also believe changes to the age of consent must be practical and carefully considered to ensure they achieve their goal without unintended negative effects. To do so they should be dealt with in a comprehensive package within the broader context of other age related issues in the criminal code. That is why the Department of Justice issued its consultation paper. The results of that consultation process should be used to ensure that the best options are put forward and carefully considered so that children can be given the comprehensive protection they deserve.