Submission to the House of Commons Justice Committee on Bill C20 Regarding Age of Consent, October 7, 2003

By Norman Boudreau

Question

Are the proposed amendments contained in Bill C-20 a viable alternative to raising the age of consent to sexual activity from 14 to 16 years?

Answer

No. The proposed amendments to the Criminal Code are patently flawed. The Department of Justice fails to live up to its fiduciary duty to protect the children from sexual predators.

Discussion

The Position of the Department of Justice
During its presentation on September 25, 2003, Minister Cauchon informed the Standing Committee on Justice and Human Rights that the best way to protect young persons against sexual exploitation was to raise the general age of consent to sexual activity from 14 to 16 years. Despite this acknowledgment, the government insists on introducing a flawed process based on the Judge's subjectivity to determine what is an exploitative relationship.

The proposed amendments would technically permit a 50 year old man to have a sexual relationship with a 14 year old girl or boy providing that the relationship is not determined to be exploitive. The Department of Justice proposes that the Court proceed on a case by case basis to determine whether or not the relationship with the child is exploitive.

Internationally
The age of consent to sexual activity in Canada is 14, being one of the lowest in the world. Most western democracies, namely England, Scotland, Australia, and New Zealand, set the age of 16 years to be the age of consent to sexual activity. Countries like Ireland and the United States raise the bar and set the age of consent to 17 and 16 to 18 respectively. The Department of Justice's position flies directly in the face of all Children's rights organizations' position across the country and the Association of the Canadian Chiefs of Police.

The vast majority of Canadians also support the age of consent to be 16 and are shocked when they learn that the age of consent in Canada is 14 years.

In 1987, the Conservative government reduced the age of consent for sexual activity from 18 to 14. The reason for the change seemed to be that the Government in an effort to be "Charter compliant" did not want to criminalize teens who were sexually active with other teens. However, since no restriction on the second person's age was mentioned, the law gave legal permission for adults to engage in sexual activities with 14, 15, 16 and 17 year olds.

The Proposed Amendments
The proposed amendments would criminalize a consensual relationship between an adult and a child age 14 to 18 if the relationship is deemed to be exploitive. Subsection 153 of the Criminal Code would be amended to set out the "Factors to be considered" in determining whether a person is in a relationship with a young person that is exploitive of that young person. In that regard the Court would consider the nature and circumstances of the relationship between the person and the young person, including the following:
a) the age difference between the person and the young person;
b) the evolution of the relationship; and
c) the degree of control or influence by the person over the young person.

It is noted that the list of factors to be considered is not exhaustive. Creative Defence Counsels will certainly add to this list and find a way to favour their clients.

Deficiencies of the Proposed Amendments
1. Judges subjectivity
It is up to the Court to determine whether a person is in a relationship with a young person that is exploitive of the young person. The determination is left in the Judge's discretion. A relationship therefore may be determined to be exploitive by one Judge and not by the other. We will see a vast body of jurisprudence develop in this area and many appeals before the question of what is an exploitive relationship is answered.

2. Vagueness
The Canadian Public deserves to be subjected to clear law without any ambiguity. The proposed amendments are vague and confusing. What may be considered a crime for one individual is not considered a crime for the other. It is up to the Police and the Crown attorneys to prosecute or not what they may consider a crime. Adults will not know that they are breaking the law until they are arrested. The uncertainty and vagueness of the law will attract Charter challenges by the accused. The law will likely be struck for uncertainty.

3. No preventive measures
The proposed amendments do not serve as a deterrent to the crime. In fact, the whole scheme of the proposed amendments is in contemplation that the act was committed and it is now the task of the Court to determine if a crime was committed. Evidently, the onus rests on the complainant to prove to the Court that the relationship was exploitive. Most 14-16 year old children do not have the maturity or developmental ability to recognize an exploitive relationship having regard to the manipulative natures of pedophiles.

4. Not practical
The proposed amendments do not take into consideration the reality of the judicial process. The accused will never plead guilty to an act that may or may not be considered by a judge to be criminal. Inevitably the accused will choose to proceed to trial so that the Court may determine whether or not the relationship with the child is exploitive. The Court's time and the tax payer's money will be wasted. The child will be re-victimized having to relive the events by testifying at the preliminary hearing and trial.

5. The Reality
The proposed amendments still hold on to the notion that sexual activity between a 14 year old and a much older person might be consensual. This is wrong and ought to be criminalized.

6. Historical cases
It takes a long time to realize that you have been abused and “consent” at 14 might only be seen as abuse when you are older. It will be impossible to prosecute any historical cases. The Courts will not be in a position to determine if a relationship that occurred 20 years ago was exploitive. The perpetrators will go unpunished.

Recent cases on age of consent
R v. Edmondson and R. v. Brown and Kindrat (Melfort Sask. Q.B. 2003)
A 12 year old aboriginal girl was preyed upon sexually after being made drunk by three adult males. Edmondson, 26, sexually assaulted the 12 year old girl with his two friends Brown and Kindrat, outside his truck on a gravel road near Tisdale Saskatchewan in September of 2001. One accused (Edmondson) was convicted and the other two (Brown and Kindrat) were found not guilty. In the case of Brown and Kindrat the jury found that the accused took “all reasonable steps” and honestly believed that the girl was at least 14 years old or more. During his instructions to the jury prior to the deliberations, Justice Fred Kovach referred to Brown and Kindrat as “boys” at least six times while referring to the girl as “Ms.”.
Edmondson is appealing his conviction and the Crown is appealing Brown and Kindrat acquittals. If the age of consent would be raised to 16, the accused would have been convicted no questions asked.

Conclusion
Beyond Borders submits that the Department of Justice must now raise the age of consent to sexual activity from 14 to 16 to guard against the sexual exploitation of children. Raising the age would provide children and young people with an additional measure of protection until they reach a higher level of maturity and understanding about the issues involved in engaging in sexual activity.

Beyond Borders further submits that the proposed amendments contained in Bill C-20 are flawed and contrary to the best interest of Canadian Children and to the population in general.

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