Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence for February 22, 2008 - Morning meeting
OTTAWA, Friday, February 22, 2008
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:02 a.m to study Bill C-2, an Act to amend the Criminal Code and to make consequential amendments to other Acts.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Honorable senators, the Standing Senate Committee on Legal and Constitutional Affairs continues its study of Bill C-2, an Act to amend the Criminal Code and to make consequential amendments to other acts.
This will once again be a long day and we are starting with two extremely interesting witnesses. Gentlemen, we thank you very much for having accepted our invitation.
[English]
We have with us Professor Neil Boyd from Simon Fraser University and Jonathan Rudin, the Program Director for Aboriginal Legal Services of Toronto. I will ask each of you to give a short opening statement and then we will have a generalized question period.
Neil Boyd, Professor, Simon Fraser University, as an individual: I am pleased to have the opportunity to speak with you this morning regarding Bill C-2, the tackling violent crime bill. My general observation of the bill, an attempt to address the amalgam of firearms offences, dangerous and high-risk offenders, impaired driving and the age of consent, is that it is not motivated by the best available evidence regarding the effectiveness of various kinds of sanctions in responding to crime. Instead, it is a patchwork quilt of somewhat moralistic and punitive sentiments applied to these rather disparate issues of firearms crime, the classification of dangerous offenders, drugged driving and adolescent sexuality.
I would like to be as precise and as evidence-based as I can in responding to the proposed legislation, as I view this as its principal weakness. My two greatest concerns flow from the reverse onus provisions to be employed in dangerous offender hearings and the raising of the age of consent from 14 to 16 years — albeit with a caveat of a less-than-five- year age difference in place as a potential defence for the latter as outlined in proposed subsections 150.1(2.1) and (2.2). I am supportive of increased penalties for impaired driving in a symbolic sense and for attempting to control existing loopholes in the law, though I do have a number of practical concerns about how the legislation might actually change existing practice and how impairment by cannabis is to be judged. I have similar kinds of concerns about the limited extent to which changes will impact current practices with respect to amendments to firearms legislation.
I will begin with proposed section 753(1.1), which perhaps is the most contentious, most controversial part of this bill, the apparent need to have reverse onus provisions in relation to dangerous offender hearings.
If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions [of dangerous offender status] are presumed to have been met unless the contrary is proved on a balance of probabilities.
I suppose my concerns are both principled and practical, principled in the sense that when we take liberty away, we normally request that dangerousness or a criminal offence be proven beyond a reasonable doubt. If we are to change that long-standing practice — which in my view we should do extremely rarely, if ever — we should have compelling data to push us in that direction.
In recent years, there have been about 25 dangerous offender hearings per year. Do we have data to suggest that this is working terribly, that in fact people who are dangerous are not being found dangerous? Are there such travesties of justice, such difficulties with this legislation that we need this reverse onus provision? Liberty is at stake, and it seems to me critical when liberty is at stake that we take it away only if we have proof beyond a reasonable doubt. If there is one proposed section of this bill that ought not to survive the Senate, it is this particular one. It sends the wrong message to Canadians. It is not necessary. There are no data to suggest that this is a good idea.
As I say in the report, it is not at all clear why this traditional protection of proof beyond a reasonable doubt should not apply in such circumstances. You can look to the recent judgment of the Ontario Court of Appeal in R. v. D.B., currently before the Supreme Court of Canada. The decision of the Ontario Court of Appeal would suggest that the bill would not only be likely to face the time and costs of a constitutional challenge, it would also be likely to fail. If it does not fail in that instance, you can be sure that, although this will provide a lot of work for lawyers, it is not necessary for the protection of the public. It seems to me that it is politically based rather than real-world based in terms of available data and in terms of the need for it insofar as principle is concerned.
I would like to go on to the age of consent. The age of consent amendments are, understandably, motivated by concerns about the predatory conduct of some men in relation to young women between the ages of 14 and 16. However, there is no available evidence from a variety of jurisdictions around the world to suggest that setting the age of consent at 16 leads to less sexual exploitation of the young, particularly, the concern here, to less sexual exploitation of young girls.
We do, however, have evidence of relevance with respect to this issue. Survey data indicate that about 25 per cent of both male and female adolescents engage in sex before the age of 16 in what is most often described by the participants as a consensual relationship. More to the point of the current legislation, approximately 25 per cent of females who engage in sex before the age of 16 do so with a partner who is more than five years older than they are. In other words, in every year, tens of thousands of young Canadian girls, about 6 per cent of all females under the age of 16, engage in sex with males who are more than five years older.
The results of a recent survey in the United States indicate that the sex was unwanted for these young women in about 25 per cent of the cases. Obviously, that figure is too high. There is not much doubt that, if you look at the population of these people, you have higher teenager pregnancy rates and a number of difficulties of a similar kind, including less education, and so on.
In 75 per cent of the cases, however, this was not the reality. Social and educational difficulties are more likely for females who engage in sex with men more than five years older, but is the criminal law the most appropriate or the appropriate response at all? It is a social problem, and criminalizing the men who are the partners of these young girls misses the reality that in most instances these are not sexually predatory relationships. The overwhelming majority of young women, two years after the event, do not regard themselves as having been the victim of a criminal offence. In about half of these cases, sexual intercourse took place with a person with whom they were ``going steady.'' In these circumstances, given that we are talking about tens of thousands of young women, the criminal law seems more likely to create harm than to create benefit.
I must move from one subject to another in relatively quick succession, but the bill is a rather disparate grouping of topics.
With respect to impaired and drunk driving amendments, I support changes to increase penalties for impaired driving causing bodily harm and death. Although there are rarely convictions for such offences, even in circumstances where impaired driving leads to fatalities, it is important symbolically to make the point that this kind of harm is analogous to other kinds of offences against individuals where bodily harm and death are the consequences of some form of criminal intent. In every year in Canada there are twice as many deaths due to impaired driving than to murder or manslaughter, yet we rarely apply the same standards of culpability, moral, legal or otherwise, to those who engage in such conduct.
Having said this, however, I am not sure how the legislation will significantly alter current realities. In British Columbia, the routine response to impaired driving is to issue 24-hour roadside suspensions. This is done because the time and resources required to process impaired charges are so substantial that the exercise of doing so will only be undertaken in the most egregious of circumstances. Because of the size and the social and economic diversity of the population who commit this offence, we have an extraordinary body of impaired driving law and an extraordinary degree of concern about the rights of impaired drivers relative to many other accused within the criminal justice system.
The consequence of this reality is that law enforcement has been made more difficult. I am not at all sure that the amendments will serve to make enforcement more effective; I see no evidence of this. In fact, additional requirements regarding the testing of impaired drivers seem only likely to fill the pockets of defence counsel, as they will understandably question the dubious science behind these new techniques of enforcement.
In addition, the testing of cannabis impaired drivers is more complex than it may appear. There is a difference between the detection of cannabis in a person's metabolites and the detection of recent impairment. The only reliable test of recent impairment seems to be blood serum testing, and even this test, when given to regular users of cannabis, is not able to pinpoint the time of consumption more precisely than within a 24- to 48-hour window. Regular users of cannabis constitute the population that is arguably most likely to be apprehended for driving while impaired by that drug. Again, lawyers will profit from this legislation, but it is not clear that it will have much impact on rates of driving while impaired by alcohol or other drugs.
Finally, I would like to focus on firearm offences and the mandatory minimums that are being imposed. We already have mandatory minimum sentence terms, but these new proposals will increase the term of the first conviction from one to three years. While handgun crimes represent a significant problem and have constituted a greater percentage of homicides in Canada during the past five years than previously, it is not clear that the mandatory minimum will stem the violence that we currently see on Canadian streets.
I would be supportive of attempts to take all handguns out of circulation as dangerous commodities. They seem more threatening to the population at large than most currently elicit drugs. If we are talking about dangerous commodities, as a culture we have made choices that kindly might be termed bizarre.
My concern about the legislation is not because of any reluctance about getting tough with gun violence. My reticence flows from questions about the practical consequences of doing so. Let us consider the young men on the streets of Vancouver and Toronto who are carrying guns as part of their lifestyle, ready to use lethal violence against their adversaries or their friends over business issues such as failure to pay, theft, competition and the marketing of defective products. There are then the more mundane or common causes of handgun shootings, prompted by personal issues such as perceived insult, loss of face or jealousy.
In all of these circumstances, there is one constant: young men who are prepared to shoot each other are far from worried about whether the penalty will be three years instead of one year, or five years instead of three, or even life imprisonment with no possibility of parole for twenty-five years. They are already risking their own lives as part of doing business.
Is there any evidence that mandatory minimum terms will serve to make our streets safer? No, not at all. In fact, if you search either of the two major criminological databases, Criminal Justice Abstracts or National Criminal Justice Reference Services, you will find many evidence-based articles about the impacts of mandatory minimum sentences in the United States. I engaged in this exercise recently and could not find a single article that had positive findings or expressed positive sentiments about these approaches. This is not because criminologists are woolly-headed liberals — far from it. It is simply because the evidence in opposition is so overwhelming.
Senator Cowan: I guess I am disagreeing here.
Mr. Boyd: The minimum terms do not deter. By removing judicial discretion, they have the tendency to incarcerate unnecessarily. As many have said about this problem, one size does not fit all. Additionally, mandatory minimums are extremely costly, leading to unprecedented rates of incarceration in the United States.
There is little doubt that mandatory minimum terms of imprisonment have dramatically increased rates of imprisonment in the United States, but have done so without impacting the crime rate. I have a relevant citation indicated there, in my brief.
Unfortunately, most of this initiative — and I am speaking here specifically about the mandatory minimums — is posturing and bravado. Claiming to get tough on crime leads to increased rates of incarceration but does not make our streets safer. I will stop there and will be happy to answer questions after Mr. Rudin gives his presentation.
Jonathan Rudin, Program Director, Aboriginal Legal Services of Toronto: Aboriginal Legal Services of Toronto, ALST, would like to thank the Standing Senate Committee on Legal and Constitutional Affairs for this opportunity to present our perspective on Bill C-2.
The last time we were before this committee was in October 2001 to discuss the proposed Youth Criminal Justice Act. At that time, we spoke of the need to include a section equivalent to section 718.2(e) of the Criminal Code — often referred to as the Gladue section — in the YCJA. This committee and the Senate listened carefully to our concerns and the concerns of other Aboriginal organizations and did amend the bill, and that amended bill was passed by the House of Commons. We would like to take this opportunity to personally thank you, as committee members, and the Senate as a whole for taking that stand. I can assure you it has made a real difference.
In the interest of time, I will dispense with the descriptions of the programs that we have at Aboriginal Legal Services. They can be found in the written materials.
In order to put this bill in perspective, it is important to keep in mind a few statistics. The issue of Aboriginal overrepresentation in prison is one that has concerned Canadians since it became widely known in the late 1980s. The reality of overrepresentation was one of the motivating factors behind Parliament's reforms in Bill C-41 in 1996 and specifically in the introduction of section 718.2(e)
Yet, despite all the concerns expressed about Aboriginal overrepresentation, the situation continues to get worse. At this point in time, approximately one in five men in prison are Aboriginal, while almost one in three women are Aboriginal. Not surprisingly, Aboriginal people make up over 20 per cent of the dangerous offender population in Canada.
Bill C-2 is an omnibus bill that contains a number of provisions. Our focus today is on two aspects of the bill: the minimum mandatory sentences for firearms offences and the proposed regime for declaring a person a dangerous offender.
We have two specific concerns with the mandatory sentencing aspect of Bill C-2 and we wish to make one suggested amendment to that portion of the bill. Our concerns are, first, that too many minimum sentences start with penitentiary terms and, second, as Professor Boyd mentioned, that there is no reason to believe that minimum sentences actually deter crime.
Under this bill, a number of current one-year minimum sentences will now start at three years' imprisonment. While there are some individuals who, for reasons of public safety, must be sentenced to penitentiary time, this bill casts the net far too wide.
Members of this committee should be under no illusion that a three-year sentence is likely to lead to positive changes in the lives of offenders. Information we have received from Correctional Service of Canada in Ontario indicates that most individuals sentenced to three years' imprisonment will receive no substantive programming at all in the penitentiary prior to their release. In addition, CSC has virtually no Aboriginal-specific programming in Ontario. I know you heard similar concerns voiced by the Correctional Investigator of Canada earlier in your hearings.
It is important to keep in mind the finding of the Supreme Court of Canada in Gladue that the prison milieu is particularly inappropriate for Aboriginal offenders, in part because of the racism that is prevalent in Canada's jails. While Gladue was decided in 1999, that issue has not gone away. As the Correctional Investigator told you during his appearance before this committee, systemic discrimination towards Aboriginal people continues in CSC.
This bill will result in some individuals with little or no prior involvement with the criminal justice system going directly to the penitentiary. Being incarcerated with the most dangerous offenders in Canada will give these people the opportunity to learn new skills, but unfortunately not the skills we would want them to learn. We have to be realistic about what happens to people when they go into the penitentiary. In most cases, they come out worse than when they went in.
At the heart of this portion of the bill is the belief that minimum sentences deter people from crime. Since much of this bill is concerned with increasing minimum sentences for offences where minimums already exist, the assumption must be that higher minimum sentences deter people even more.
The fundamental problem with this theory, as Professor Boyd pointed out, is that there is no evidence to support it. Despite making up only 3 per cent of the Canadian population, Aboriginal people comprise 22 per cent of those in Canadian prisons. Aboriginal people know better than anyone else that doing the crime means doing the time, yet rates of Aboriginal over-incarceration continue to rise. In large part, this is because much of Aboriginal offending is not calculated, organized crime but rather an unthinking response to immediate pressures. Addictions, interpersonal violence, a sense of hopelessness and the legacy of government practices, such as residential schools and mass adoptions, all play a role in explaining why Aboriginal people commit crime.
This is not to excuse the behaviour, but we need to understand that the threat of minimum sentences will do nothing to address the root causes of Aboriginal offending. It will merely lead to more and more Aboriginal people being sent to jail for longer and longer periods of time.
Why should Canadians care that our jails are increasingly becoming the preserve of Aboriginal people? After all, if Aboriginal people commit crimes, why should they be exempt from jail, the most serious sanction the criminal justice system provides? To answer these questions, it is helpful to return to the decision of the Supreme Court of Canada in R. v. Gladue.
When discussing Aboriginal overrepresentation, the court said:
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.
Aboriginal overrepresentation speaks to the failure of the criminal justice system to address the root causes of Aboriginal offending.
These concerns lead us to our proposed amendment to the bill. We support the amendment proposed by the Criminal Lawyers' Association to this committee:
Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the court, before sentencing the accused, shall consider whether the minimum punishment is necessary, having regard to the public interest, the particular needs of the community and the interests of the accused in all circumstances.
In practice, this amendment would mean that a judge sentencing an Aboriginal person would apply the Gladue principles in determining whether or not a minimum sentence would be imposed in a particular case. In many cases, the minimum sentence would be imposed. However, in those cases where it would be unfair in the circumstances, the judge could impose either a shorter prison sentence or perhaps a conditional sentence.
With respect to the dangerous offender provisions, I know that many of the witnesses who have appeared before you have spoken of the likely unconstitutionality of the provisions. We share these concerns, but we want to look at a different problem with the provisions.
The fact that individuals are convicted on a number of occasions of serious violent offences and then spend significant periods of time in jail on each conviction speaks as much to the inability of the Correctional Service of Canada to address the needs of these offenders as it does to some perceived sense of inherent dangerousness in these individuals.
Recently, Justice Kiteley of the Ontario Supreme Court of Justice released her decision in R. v. Mumford, a dangerous offender application brought by the Crown. Mr. Mumford, an Aboriginal person, suffered from many problems, including fetal alcohol spectrum disorder, FASD. Correctional Service of Canada was aware that he had FASD.
A person like Mr. Mumford, with FASD, suffers from very real cognitive deficits, yet none of the programming that was available to him in the penitentiary system took this into account. Instead, Mr. Mumford was required to attend programs that he could not understand and where he could not be expected to learn anything, and so he did not learn anything. He served his full sentence in prison, was released and then committed a horrendous sexual assault.
Justice Kiteley found that Mr. Mumford could not be found to be a dangerous offender, although he was a long- term offender, because it would be wrong to assume that he could not be safely released into the community if he never had access to the programming that he needed when he was in prison.
Bill C-2 places the onus on some offenders to show why they should not be treated as dangerous offenders. The onus should, in many cases, be on the prison system to show why they cannot provide any meaningful treatment options for these offenders. This bill would see individuals spend their life in jail because while they were in jail previously, they did not have access to the programming they needed.
If we ask offenders to take responsibility for their actions, we need equally to ask those who take those offenders in to take responsibility for their actions or inactions. Bill C-2 will do nothing to address this issue. On the contrary, it will add more and more people to our prisons who could, with the proper help, live their lives in the community. We know that many of these people, at least one in five, and likely more, will be Aboriginal.
In 1991, I attended an Aboriginal justice conference in Whitehorse and I had the opportunity then to hear from Chief David Keenan of the Tlingit First Nation. When he spoke of the need for programs to integrate people back into their communities, he said, ``There is no such thing as a disposable Tlingit.'' I have always remembered those words because they represent the essence of the Aboriginal approach to justice: We are all related; we are all part of a greater whole; we all have responsibilities to each other.
Bill C-2 is a rejection of that approach. Under the guise of dealing with violent crime and purportedly making communities safer, what it does is treat people as disposable. Disproportionately, the people that our justice system disposes of are Aboriginal people. This bill will not make communities safer, it will just jail more Aboriginal people for longer periods of time. It is hard to see how this can be seen as a positive step forward.
Senator Di Nino: On a point of clarification, Mr. Boyd, when you were talking about the greater percentage of homicides having been committed with handguns, you said five years. However, in your written presentation it says 15. Will you clarify which it is?
Mr. Boyd: It is 15. I missed by 10 years.
The Chair: While we are clarifying, Professor Boyd, in the second-last sentence on page 3 of your written brief you state: ``Further, in about half of all these cases sexual intercourse took place with a person with whom they were `going steady'.'' You talked about a fairly wide range of cases in the preceding sentences.
Mr. Boyd: There I am making reference to the 6 per cent of the total, or 25 per cent of the total of those under 16, who had sex with partners who were more than five years older.
Senator Stratton: Thank you and welcome, gentlemen.
Lynn Barr-Telford, Director of the Canadian Centre for Justice Statistics, puts out a publication on crime trends in Canada. There is real concern about this subject among the Canadian public. We heard the following statistics on February 14.
The rate of youth accused of a firearm-related violent offence has increased 32 per cent since 2002. The attempted murder rate is up 24 per cent since 2004. Aggravated assaults are up 57 per cent since 1983. The rate of cocaine offences has increased 67 per cent since 2002. The rates for aggravated assaults go back over 20 years. The other three offences are compacted into a five-year span. That is scary. My questions will stem from this data.
Mr. Rudin, I have visited a fair number of reserves in my life. I find it tragic that life on reserves is so bleak, particularly for the youth. An isolated reserve in Northern Canada, particularly in Northern Manitoba, is even worse than bleak.
While Aboriginals have a higher rate of incarceration, their victims are Aboriginal as well. You have recommended an amendment, agreed to by the Criminal Lawyers' Association, that reads:
Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the court, before sentencing the accused, shall consider whether the minimum punishment is necessary, having regard to the public interest, the particular needs of the community and the interests of the accused in all circumstances.
Where is the victim in this amendment?
Mr. Rudin: First, the victim is included in the community, and that is probably the most significant point. People are not monolithic, but much of the drive to change the way justice is administered to Aboriginal people comes from victims' organizations. In Ontario we are attempting to change the way domestic violence is dealt with by the courts, and that change is being driven by Aboriginal women's organizations, because their sense is that the system we have now is not working.
The difficulty with incarceration as a first response for Aboriginal people is that these individuals come back to the community, and they do not come back better, so communities are not made safer. This is not a question of not wanting to protect victims or not feeling for victims. Most of our clients who have been charged with criminal offences have themselves been victims of offences for which no one was charged.
It is not about ignoring the interests of victims. It is about finding an effective way to deal with people who commit crimes in order that they stop committing crimes. Putting someone into Stony Mountain Penitentiary in Manitoba for three years, for example, and then having them return to the community will not make anyone in that community, including the victim, feel safer.
Senator Stratton: Why would the victim not be specifically heard?
Mr. Rudin: The victims are heard.
Senator Stratton: Yet so are the accused. If you are going to put forward an amendment to ensure that the interests of the accused are heard in all circumstances, why not hear the victims?
Mr. Rudin: The current provisions allow for victim impact statements. In terms of minimum sentences, the relationship between section 718.2(e) of the Criminal Code and minimum sentences means that a judge must apply the minimum sentence to every offender, regardless of other issues. This proposed amendment would allow the judge to balance other concerns in order to determine whether a minimum sentence makes sense. The victim already rightly has an opportunity to be heard through the victim impact statement process in the sentencing.
Senator Stratton: I will disagree on that. I believe that if you are going to talk about the accused, you should also talk about the victim.
Professor Boyd, you spoke about quite a number of concerns with the bill. We heard that the reason for lack of convictions for impaired driving is the two-beer defence that has been utilized extensively. If that is the case, why would we not do something about that in this bill?
Mr. Boyd: My point about impaired driving was to look at what is happening now and to ask how the bill might change that reality. Police officers tell us that they do not have the time or the resources, except in the most outrageous and egregious circumstances, to proceed. They issue 24-hour licence suspensions. The testing requirements and inclusion of concerns about cannabis that I see in the bill do not seem to move matters forward. They raise a series of possible objections and concerns that might be raised by defence counsel. There are many legitimate concerns about how valid the new methodology of testing might be, and there remain difficulties in how we determine cannabis- impaired driving. I will certainly not argue that cannabis-impaired driving is benign, as some of the young hempsters in Vancouver might, but it remains a much less serious problem than driving impaired by alcohol.
This bill has a political history that goes back to the Liberal government. I understand the reasons for it. My point is simply that I cannot see it having much impact.
Senator Stratton: I am sure you realize that we have been told by witnesses that in the United States the two-beer defence is considered to be ludicrous. They have never heard of it down there.
Mr. Boyd: There is a much more significant problem than the two-beer defence, and it has to do with resources, our culture, the way we treat alcohol as quite separate from other drugs, and the extent to which we see intoxication by alcohol as funny and amusing, while intoxication by currently illegal drugs, which is much less harmful, we see in a different light. We are very much blinded by our culture, and this bill simply reflects that confusion.
Senator Stratton: I do not think it is confusion, sir. If in the United States they look at our two-beer defence and are astonished that it is used and accepted, it is surprising that you have not heard that and would comment on that.
Mr. Boyd: It does not go to the heart of the problem, and that is my point. I will not argue with you about that particular defence.
Senator Stratton: I would like to go down for a second round, if I may, because I would like ask you questions with respect to the age of consent issue.
Mr. Boyd: You made some introductory comments with respect to offences. A great frustration for me and for many who study crime is that several categories get lumped together as if they are a single category. For example, we are often told that violent crime is going up or property crime is going down. The reality is that there are many parts to violent crime. You lumped cocaine offences, firearm offences and a number of other categories together.
As you know, the extent to which drug offences are reported is not a reflection of the extent of use but rather of the extent of enforcement, policy directives and so forth.
The most reliable index we have of violent crime is homicide. We have seen homicide rates declining in Canada from the 1990s to about 2002 and plateauing since that time.
When looking at rates, you also have to keep in mind that you are talking about a very tight time frame, although a 24 per cent or 32 per cent increase sounds awful. Most times, if we want to understand what is happening, we must look at 10-year time frames, particularly with something like firearms offences by youth, because we are also talking about a small number of firearms offences.
I will give you an example. In 1986, the murder rate in Canada fell 20 per cent, and people were saying, ``What is going on?'' Well, the next year it went back up 18 per cent. The number there is 500 or 600 — still small numbers. Statistically speaking, we can have quite marked fluctuations that do not mean anything.
What does mean something over time are two points that I believe come out of the last 15 years of statistical data. First, the number of handgun homicides relative to all firearms homicides has increased. Second, the number of homicides per capita, which perhaps best reflects our ability as a country to live in peace, has declined. There is no crisis.
Senator Stratton: I would disagree, sir. Do you actually think we should sit around and wait another five or eight years for the statistics to be proved rather than do something?
Mr. Boyd: I think we should do something. Absolutely, I think we should do something.
Senator Merchant: I, too, am a little concerned about the impression that we are leaving that this new bill, which is more punitive, will make communities safer and will bring down the statistics. Maybe it is true, and you can correct me if I am wrong.
You were talking about the murder rate. I have a long-range statistic here: in the 1970s, the murder rate was 3 per 100,000; in 2006, after capital punishment was abolished, the rate was 1.8 per cent per 100,000. You said that we cannot make assumptions based on too brief a period, but this period is long enough.
Regarding the dangerous offender section, some constitutional lawyers have indicated that the proposed amendments offend sections 7 and 9 of the Canadian Charter of Rights and Freedoms. Right now, we have a law, which seems to be working and which is constitutional. When this new proposed law comes in, we can assume that many offenders will challenge it. If the law were found to be unconstitutional, would we then have no law at all to deal with these people? What means would we have of dealing with dangerous offenders? I am sure the government would come back to try to remedy the situation, but let us presuppose that that law is found unconstitutional; what do we do in the meantime?
Mr. Boyd: You are asking for a procedural interpretation from somebody who does not practice law, but my sense of it is that if the Supreme Court says that the law is contrary to the Charter and the government has to go back, there is a period of time where nothing would be operative.
It is unnecessary. You are quite right. I can point to a number of sources. Law and Risk is a recent publication in which the situation is clearly documented. There have been about 25 of these cases annually within the last five or six years. There does not appear to be a problem. It is not as if the federal government has come forward and said, ``Here are the cases where we needed a reverse onus and we did not have it.'' It is quite extraordinary because of the issues of liberty.
I might just add about the homicide rate that the major reason for the decline, in my view, is the percentage of young men in the population. It is not a glamorous reason, but in 1977, 10 per cent of the Canadian public was made up of young men between the ages of 18 and 29 who commit about two thirds or 75 per cent of all our homicide offences. Today, the figure is 5 per cent, so not much changes. We like to think things change, but they change much less than we think.
Senator Merchant: No, but if we are going to quote tables, that is a table someone would refer to.
Mr. Boyd: It is often said that the reason is gun control. I am certainly in favour of gun registration, but I would not want to point to that as the reason.
Senator Merchant: Mr. Rudin, as I have said many times here, I am concerned about some of the issues regarding justice and the Aboriginal population. I live in Saskatchewan where we have much higher rates of Aboriginals in our correctional institutions.
We have heard figures about how much it costs to keep a person in jail per year, and it is close to $100,000. Why can we not use that money to somehow deal with people in a way that might produce safer communities and safer people?
Yesterday, we had before us the Assistant Commissioner of Correctional Operations and Programs, Correctional Service of Canada, but he deals with people once they go into the dangerous offender designation. He indicated that they look at every person on an individual basis and that they do treat that person. Is that your experience?
Mr. Rudin: You have asked two questions, so I will try to answer both parts.
Regarding the first, there is no question, in our opinion, that money is oddly spent. We run a number of alternative justice programs, and the cost of putting two offenders in jail for a year would cover our program. We are often asked whether our program works. We spend a lot of time reporting on success and on failure. If our program showed that it was not effective, we would be shut down. We do not impose the same rules on the federal or provincial penitentiary systems. We do not look at rates of recidivism and say, ``What you are doing is obviously not working, so we will cut off your funding.'' There is an assumption that jail is always okay, it always works, and you get more and more money for that. I agree that that is a real concern.
As for the second issue, I cannot speak about the dangerous offender population, but I can speak for the general population. As I said, a three- or four-year sentence in Ontario, for the most part, will get no programming. The reality is that when you go into correctional services in the federal system, you are classified as maximum in most cases. In order to access programs, you have to be at least a medium designation. In order to get a medium designation, you have to go through mandatory programs, which are not available. By the time you are eligible for your statutory release, two-thirds into your sentence, you have had no programming.
It may be true that people who are sent to jail for ten years have an opportunity to have some programming, although I am not sure that it really meets all their needs, but certainly the vast majority of people who go to the penitentiary go for less time than that, and they get no services.
That is a problem from the perspective of Aboriginal inmates. We know people who get arrested and say, ``I want to be sent to the penitentiary because I know I will get programming; I know there is a healing lodge and other things.'' Before they say, ``Send me away for three years,'' we have to tell them that likely they will never get any of those services. Many of our clients want those programs, but they are not getting them.
Senator Oliver: Professor Boyd, you have been quite critical of the reverse onus provisions in the bill. It seems to me that before you make those criticisms you should first put them in the context of Bill C-2. As Senator Stratton has reminded you, Bill C-2 tackles violent crime. There is a public interest that must be protected, a community interest that must be protected, and victims must be protected. We really must be concerned about public safety as a whole. When you put your criticism in that context, when you look at what Bill C-2 is trying to do, it seems to me you should be able to lessen your criticism of the reverse onus provisions in the bill.
Not only that, but reverse onus is not new. We should not be constitutionally afraid of having a clause in the Criminal Code about reverse onus. As you know, in the 1992 Pearson case, the Supreme Court of Canada said that it is okay to have reverse onus.
Moreover, as you know from reading our transcripts, when the Minister of Justice appeared before this committee at the beginning, he said that as minister he has an obligation to make sure that all statutes he brings before us are Charter-compliant, and he said that they had done a thorough job to make sure that the all the i's are dotted and the t's crossed. He has an obligation to do that, and he indicated to this committee that he discharged that obligation.
With that background, the Supreme Court said in 1992 that it recognized the validity of reverse onus provisions in relation to offences involving drugs in R. v. Pearson, and we have that here.
Why do you get so concerned when you read in proposed section 753(1.1) of the bill that the conditions of dangerous offender status are presumed to have been met unless the contrary is proved on a balance of probabilities? To support that, you talked about a case that has not yet been decided in the Supreme Court, R. v. D.B. I do not know that case, but even though it has not been decided, what do you say that it is about?
Mr. Boyd: It is a youth justice case involving transfer to the adult court and a mandatory penalty.
Senator Oliver: What does that case say about reverse onus?
Mr. Boyd: It is critical of reverse onus because of the issue of liberty.
Again, I understand what you are saying about care with respect to Charter compliance and so on, but this is really an issue of principle. As Canadians, we have traditionally not taken away individual liberty unless we discharge the traditional burden of proof in criminal cases. We should only deviate from that norm in exceptional cases.
I think the onus is on the government to make the case here. What are the data telling us about the dangerous offender provisions or, more specifically, about how these dangerous offender hearings have been conducted today? Are there 10 or 15 cases? Is there a great number of cases that we can point to that suggests that the courts have let very dangerous people go free? Where is the demonstrated need for these provisions? I think we would all say that we do not want to put something in place unless there is an extraordinary need to do so.
Senator Oliver: We have it already, and the Supreme Court of Canada has condoned it.
Mr. Boyd: You are just saying what is. I am talking about principle. You are trying to respond by saying these things exist.
Senator Oliver: The principle has been tested for constitutionality and whether or not it is Charter-compliant.
Mr. Boyd: It has failed in the Court of Appeal.
Senator Oliver: The Supreme Court of Canada has said yes.
Mr. Boyd: I want to take us back to the principle, which is that if we are going to take away a person's liberty, should we not, as a society, try to establish that that person deserves that penalty of imprisonment and deserves to lose liberty on the basis of the traditional onus in criminal courts? It is not that a person has to prove he is not dangerous. How do you do that? It is for the Crown to prove that in fact this person is dangerous.
If I were the government, I would be coming forward and identifying the seven, for example, cases of dangerous offender hearings where dangerous people have not been declared dangerous; if it is not working, I would show that it is not working and that we need this extraordinary remedy.
Pearson presents a completely different set of issues. We are talking here about dangerous offender hearings and about the need for this bill. Where is the evidence in support?
Senator Oliver: If you read the preamble to Bill C-2 and you understand the principles set forth therein and you look at the public interest, community interests and public safety, that is what the government is backing up. That is the background against which you must look at the reasons they are bringing in the reverse onus in this case.
Mr. Boyd: There is certainly a good deal of rhetorical flourish in the preamble that says these things, but whether they actually are there —
Senator Oliver: It is a preamble.
Mr. Boyd: Just because people say something does not mean it is so.
The Chair: These exchanges are fascinating and valuable, but we still have a long list of senators who want to put more questions. I will put you down for a second round if we have one, Senator Oliver.
Senator Di Nino: Mr. Rudin, I want to start by agreeing with you that our attempts at rehabilitation, particularly in the prison system, have failed. That is what I said yesterday to the correctional services folks when they told us that nine out of ten inmates — residents of our prisons, if that is a better term — have offended before. We are not doing something right. I think that is absolutely true. Particularly, I would agree with you that we are not doing something right with Aboriginals. There appears to be an imbalance there.
However, in agreeing with you there, I would also like to disagree with you on what I suspect you have said, that we should not have these longer sentences and we should not jail these folks.
When these habitual, repeat, violent offenders — which is what we are talking about here, what the bill is all about; the bill is not about the administration of jails — live in communities they choose to live in, they create mayhem. They create havoc and a lot of pain. They make our streets and our communities unsafe.
Do you not think that by sentencing them to longer terms and putting them in jail for a little longer period of time we could keep the communities safer from these folks? First, they are in there for longer periods of time, and second, maybe there is an opportunity for the penal system to rehabilitate when they are in for those longer periods.
Mr. Rudin: First, we should keep in mind that one of our concerns is the mandatory minimum provision. People will fall afoul of that proposed section whether they are first offenders or repeat offenders. We should not think that the mandatory minimum piece is going to capture repeat offenders. We have a number of cases where we have clients who have no criminal records, who made an awful mistake and are now in jail for one or four years. That for me is the starting point. This is different from the dangerous offender issue.
We have also found that well-crafted conditional sentences have had a real opportunity to change people's lives. Aboriginal Legal Services of Toronto supports a program called the Gladue Courts in Toronto. People on our staff write reports about Aboriginal offenders coming before the courts. Those reports try to comply with the decision in Gladue. They provide information about the person's background that often the court has never heard and that helps explain why they are committing offences, and then comes up with some suggestions the court might consider for a way to deal with that person that might address those issues.
We have found that when the judge understands why the person is before the court and we are able to suggest programs — some in jail, some outside jail — that might work for this person, the judge can make that meaningful decision. A conditional sentence is a very serious sentence; it can be two years less a day. There are all sorts of conditions. People can be required to complete treatment. A lot done can be done with a conditional sentence that cannot be done with a mandatory minimum. That is one of the concerns.
I do not disagree in theory. Could correctional services find a way to deal with someone who is sentenced to a three- year minimum? They could in theory. However, they are not dealing with it now. This bill will bring more people into the penitentiary system. If there is more money, my sense is that it will go to build more penitentiaries, not provide more programming in penitentiaries, and that will not work.
My final point in this regard is that we have on a number of occasions successfully presented the argument for defence counsel that it is easier to get meaningful programs in Ontario in the provincial system than in the federal system. We have had judges who have said, ``I would normally send you to the penitentiary, but I know you will not get anything there, and with a 12-month or a 14-month sentence I know you will get something in the provincial system.'' This bill will remove that option for many offenders.
Senator Di Nino: I think we all agree that no piece of legislation will save those folks from problems or will solve the whole problem. Several different things need to be done. To give credit to this government, in the last two years they have introduced a number of measures, particularly justice for youth or youth at risk, including quite a substantial amount of money for treatment. That is all part of it. However, we are talking about the fact that there are bad people who need to be put away for longer periods of time for the sake of protecting society. Bill C-2 does not claim to be able to solve all those problems, and I agree with you that there are other things that must be done.
Regarding age of consent, Mr. Boyd, your statistics from the recent survey in the U.S. indicate that for about 25 per cent of the young women in the survey aged 16 to 24, the sex was unwanted. Senator Stratton mentioned statistics from the same report that really shook me up: first, girls aged 12 to 14 are the most vulnerable in these offences; second, the reporting of sexual offences is very low, 8 per cent. Those statistics are staggering: if that 25 per cent of young women — and young men, because this is not just about young women — represents only a reported 8 per cent or 10 per cent or a small percentage, this number is very large.
If dozens or hundreds or maybe more young girls and boys are being forced into unwanted sex by someone who is more than five years older than they are, do you not think that this piece of legislation should go forward for that alone?
Mr. Boyd: The problem is with the other 75 per cent. The problem is that 75 per cent of the people are saying they were in a steady relationship, the sex was wanted. They are saying that two years after the fact. The instrument we are creating might apply to the 25 per cent you describe but would not apply to 75 per cent of the population. The defence of five years is not quite good enough because, as I say, the interesting thing about that survey is that it points to tens of thousands of young girls having sex at such a young age — likely unwisely — in the context of consent.
We have a full figure of 100 per cent. You are talking about 25 per cent. I question the idea of using the criminal law in that context, where 75 per cent of the sex is consensual. It is a social problem. In my ideal world, girls and boys of that age are doing other things as opposed to engaging in sex.
Senator Di Nino: The bill does not deal with the young girls and the young boys. It deals with the older partners.
Mr. Boyd: Yes, it does, but again, they do not —
Senator Di Nino: I have no problem justifying the fact that we are telling older men and older women, as the case may be, older partners, that it is not permissible under the laws of this country to have sex with a child. That is really the issue.
Mr. Boyd: It is a bit like, in another context, marijuana law. We are telling people it is bad, it is illegal, do not do it. For the last 40 years, 50 per cent of high school students have done it, so we want to pretend that there is an interesting line that we draw between one activity and another.
Here we are saying, ``Do not engage in sex under the age of 16.'' It is good advice, but when people do not follow it, should we treat them as criminals? Should we treat people whom they regard as lovers and significant others as criminals?
Senator Di Nino: I am sorry, sir, this is not what this bill says. This bill does not tell young people not to have sex. This bill is telling partners who are five years or more older than the children — and I suspect some of them are much more mature, but the vast majority of them are still children — you cannot have sex with a child. It is the adult we are attacking here, not the child.
Mr. Boyd: Yes, and I just reiterate that the problem with that is it is not the way the young girl sees it. Many of these kids are kids with difficulties, but we are not solving their problems by charging their partners, however inappropriate we might see their relationship as being.
Senator Campbell: My first question was alluded to by a previous witness, Mr. Mauser. Would it be fair to say that you can take statistics, lump them together, use different categories, put them all together and make them say whatever you want?
Mr. Boyd: Yes and no. Some statistics are reliable and make sense. We can say that the homicide rate has really fallen. We can venture reasons as to why this is so.
There are circumstances where we say violent crime has gone up 10 per cent or property crime has gone down 10 per cent. We do a disservice to the Canadian public by not breaking that rate into its constituent elements and asking a number of fundamental and critical questions about why certain rates go up and down. It has to do with people not reporting, with police and policy enforcement decisions. The rates and the reality can be quite different.
Senator Campbell: For some reason, this document on crime trends in Canada seems to be a real favourite here. It is clearly a bestseller.
I will give you an example. From 1998 to 2002, firearm-related violent crimes dropped 10 per cent. It went from 36.6 to 26.8. Would you consider that significant given that that is a four-year period?
Mr. Boyd: No.
Senator Campbell: From 1998 to 2006, it went from 36.6 to 31. It has gone up a little, then down, down, down, up, up, up and then down. Is that significant? That is an eight-year period.
Mr. Boyd: No. It depends. Typically, with small numbers, you have to have something pretty dramatic before you see significance.
Senator Campbell: From 2005 to 2006, firearm-related violent crime dropped 0.9 per cent. Is that insignificant?
Mr. Boyd: Yes.
Senator Campbell: We are concerned about Aboriginal people as a minority in our society. We heard yesterday that 6 per cent of the population in prisons is Black, but only 2 per cent of the population in Canada is Black. Black people are overrepresented by 300 per cent — again statistics, nice numbers.
Should we be concerned about that? Should we be concerned that the population of our prisons is overrepresented by minorities?
Mr. Rudin: Yes, it is something to be concerned about. It is significant that when the Supreme Court in Gladue talked about overrepresentation, they said the failure was that of the criminal justice system. That is important. The issue often with overrepresentation is not, for example, that Aboriginal people are necessarily committing more crimes than non-Aboriginal people. Aboriginal people go to jail for offences that non-Aboriginal people who commit the same offences may not go to jail for. That is a big problem. We might assume that certain people are committing more crimes, but that is not in fact the case. That is why it is important to put the brakes on. I will only speak to the situation of Aboriginal people, because that is the area in which I am well versed. In our judicial system, the realities of Aboriginal people are not the realities of judges, Crowns or defence counsel. People do not know how to deal with those realities. They do not understand these things. What happens is that they resort to jail as a response. Aboriginal people seem alienated and alien to them. They do not understand the behaviour of Aboriginal people; they do not understand where they are from or the processes by which order is maintained in their communities. Therefore, people resort to jail.
Aboriginal people and minorities are overrepresented because they tend to be poor, because they tend to be targeted by the police for actions that other people engage in and because the system does not recognize them properly. That is why section 718.2(e) is there, to tell judges and everyone in the system to stop for a second. Do not just go where you would naturally go. Stop and get more information before you do what you are doing. If you do not do that, then you end up with overrepresentation.
Senator Campbell: Would it be fair to say that the reverse onus will be more negative to the Aboriginal community or perhaps even minorities?
Mr. Rudin: There is no question. With the reverse onus the net will inevitably be cast wider. When you change the onus, there is no question there will be at least one person who will be jailed as a dangerous offender who would not be jailed as a dangerous offender if the proof was beyond a reasonable doubt, if the onus was the other way.
We also know that Aboriginal people tend to plead to offences earlier. The legal advice they receive is not as good earlier. It is easy for them to rack up the earlier offences. We should understand that if a person convicted of an offence eight years ago had had a different lawyer and a different Crown, the outcome might have been different. That is a product of the systemic operations of the criminal justice system, and there is systemic discrimination in that system. Aboriginal people often do not have access to lawyers who are as well paid or as good as others. Inevitably, those individuals will form the bulk of people captured by these provisions.
Senator Ringuette: I have a few comments. I welcome your responses to them. First is the question of principle and the reverse onus. I just participated in a parliamentary exchange with Mexico. Canada has been arguing for many years that the judicial system in Mexico is based on reverse onus. One is guilty until proven innocent. This is exactly what we are trying to do here. If we want to advocate in the international scene for a judicial system that is fair, then the same principles should be applied here.
My second comment is in regards to drunk driving. I truly believe that what has been an increased deterrent to drinking and driving is education and advertising and thus increasing awareness of the injuries that one can cause friends and innocent people. Those have been effective deterrents. The fact that one would lose his or her driver's licence for a minimum period of time has also been an effective deterrent, as have the indirect insurance costs associated with all of this.
Why are we not looking at the items that work in regard to drinking and driving in this legislation?
My third item is with respect to firearms offences. We seem to be putting a lot of emphasis on the offences, but not much energy, thought and action into one of the items, illegal guns. Canada is not a manufacturer of guns, which means that those illegal guns are imported. What are we doing? We are putting all this money towards incarceration — $100,000 per year per prisoner. For a minimum sentence of three years, we are looking at $300,000. That would be four police officers or four additional border service personnel to search for illegal arms.
The Chair: Perhaps the witnesses would like to comment at this point.
Mr. Boyd: It is often said in British Columbia that we send marijuana south of the border and we get back guns and cocaine. The response of the government to this problem is to throw tougher penalties at the people who grow marijuana. I am not sure that that is the approach we need given the relative danger of the guns and cocaine coming north, not that any of that trade is desirable.
These are different approaches. One approach you are enunciating is prevention-oriented and typically, in my view, more thoughtful. The other is whacko — ``Let us get tough with these people.'' There is not much evidence in support of that. If there was, the United States would be a great deal safer than it is. The mandatory minimums, the proposed minimum penalties for grow operations that will be paid for by the provinces are symbolic of a punitive response to a complex problem. I say that with respect.
Senator Andreychuk: What I have heard this morning from both of you is that it is not Bill C-2, it is the whole justice system that you are questioning. We are not putting enough resources into treatment; we are not front-ending the process. If we are talking about root causes of problems, we are talking about young children, families and social issues. If we do not deal with them there, we end up with what I used to call juvenile delinquents, now known as juvenile offenders, young people hitting the criminal courts and being dealt with there because we have not dealt with their mental health problems, educational difficulties and a host of social issues. If we do not deal with them properly in the justice system, because we do not have the resources, then youth end up in the criminal court.
Your points are well taken. They are points that I have made over and over again. If we do not provide the treatment before criminal activity, at the beginning of the activity or during incarceration, it will not work. Bill C-2 is not the start of that problem. It is simply one issue in a long string of issues that the justice system will have to come to grips with. Every political party, when they take control of the government, must deal with it. I take your preamble as an issue.
I heard compelling evidence from Mr. Cooper, a prosecutor, who that said when we talk about repeat dangerous offenders, Bill C-2 will talk about the worst of the worst offenders. He made that very clear. He also said that the reverse onus will not bring one more case into his courts, but it will change the dynamics of how risk assessment will be done, which may lead to dealing with the dangerous repeat offender differently. Have you considered that?
Mr. Rudin: I look at the Mumford case. We do not always know that we are dealing with the most dangerous people. We know we are dealing with people who have committed serious offences. However, we do not always know that we are dealing with the most dangerous offender, because we do not know why they are doing what they are doing, or who they are, and so on.
For prosecutors — and I do not blame them for this — an individual is the set of convictions that shows up in the Canadian Police Information Centre data when they are sentencing someone. I cannot say for sure that every person who commits a heinous, awful crime is necessarily a dangerous offender or that someone who commits two of them is necessarily a dangerous offender. Mr. Mumford is not the only person with fetal alcohol spectrum disorder in the penitentiary. We know that FASD is at much higher levels in the penitentiaries than in the general population. We do not know how many people we are mistakenly labelling as psychopaths or something else when there are other reasons for their behaviour. It is fine, because we lock those people up forever so they are never a problem, but that is not necessarily the proper way to deal with it.
Senator Andreychuk: That is the point I thought Mr. Cooper was making, namely, that we would not do that. The trigger is the violence of that repetition. We also heard from Mr. Langevin, who told us that a dangerous offender has about 19 sexual assaults whereas the average for a non-dangerous offender was only 3 sexual assaults. We are trying to target the worst of the worst.
Mr. Cooper said yesterday that they are trying to get at the assessment. The violent act leads them to being part of the process, but before they go any further, they go through risk assessment. What is new is that multiministry, multijurisdictional and multidisciplinary exercise throughout, which may get at identifying the Mumford cases better than we have been.
Mr. Rudin: I recommend that you read the Mumford decision; it is a recent decision.
Senator Andreychuk: I did.
Mr. Rudin: You will see in that case that all the Crown's expert witnesses did their dangerousness assessments and concluded that Mr. Mumford was dangerous by all their standards. Although the information was before them, none of them considered FASD.
I would like to think that will be what happens, but I am concerned that in a reverse onus process, that will not occur with everyone. If we want to be as sure as we can be, as Mr. Boyd said, before depriving people of their liberty potentially for life, it is not something we should be doing on a reverse onus basis. The consequences for people are the most serious that we impose.
Senator Andreychuk: If we accepted your amendment, Mr. Rudin, effectively we would not have mandatory minimums. If you give an escape clause so that you have a judicial discretion, then that will mean it is no longer mandatory. Whether that is right or wrong, I just want to make sure that that is the effect. That is, we can no longer say we have a mandatory minimum. We will be saying that it will probably apply, but here is the escape clause, so that we are back to pre-mandatory sentences where we allowed more discretion for the judges.
Mr. Rudin: That is probably correct. Obviously, in our opinion, that would not be a bad thing. The provincial courts of appeal and the Supreme Court of Canada will also lay out the guidelines. When this is passed, it is not as though every judge of his or her own volition will say I think this or that. Quickly, that exercise in discretion will also become codified by the court.
Currently, there is a conflict between section 718.2(e) and mandatory minimums. There have already been a number of constitutional challenges to the application of mandatory minimums to Aboriginal offenders, because you are asking judges to do two things: to look at the real discrimination towards Aboriginal people that section 718.2(e) is to deal with and to look at mandatory minimums, which ignore that. This issue will come back to the courts one way or another.
Senator Andreychuk: That is not dependent on Bill C-2, though.
Mr. Rudin: If this amendment comes through, perhaps we will not have to worry about that.
Senator Cowan: Mr. Boyd, Simon Fraser University seems to be well represented at these hearings. The other day a colleague of yours, Mr. Mauser, gave interesting testimony. Because it seems contrary to most of the other evidence we have received, I would like to read to you two or three short portions of what he said and ask for your comments. He prefaced his remarks by making it clear that it was not his research that he was referring to because he had not done any research. This was his reading of research that had been done by others. He has not published in this area himself.
Regarding the question of whether or not incarcerating serious or violent offenders is effective in protecting the public, Mr. Mauser said:
My reading of the criminological research suggests that it is indeed effective. Increasing the number of offenders who are incarcerated serves to reduce violent crime and homicide rates. That is especially pronounced with homicide rates.
He then referred to the research conducted by Marvell and Moody in 1997. He said:
These two gentlemen are among the most respected criminologists in the world. In their time series studies, they found strong results at the national level affirming that expanding prison populations of serious or violent offenders is convincingly tied to reducing violent crime rates.
He then went on to say:
. . . criminological research is clear: The imprisonment of serious or violent offenders has played an important role in the dramatic fall of violent crime in the United States. These results support the logic behind Bill C-2, that is, of incarcerating those convicted of serious or violent offences.
Do you have any comments on those remarks made by your colleague?
Mr. Boyd: I am familiar with the Marvell and Moody study. I would not say it is highly respected. If you type Marvell and Moody into Google, you will get junk science, econometrics, and so on. This comes from well-respected criminologists at Rutgers and some of the leading institutions in the field. Mr. Marvell argued that citizens should have the right to carry concealed weapons. He has also argued that taking the fault out of divorce has led to an increase in divorce rates, which is no doubt true, but beside the point.
The argument is made. It is true that you can find a time in which there is a 10 per cent increase in the jail population followed by a 13 per cent decrease in the homicide rate. You can find that for one particular period of time in the United States' history. In other words, you have an n of 1.
However, if you look at all the countries in the world, you find no relationship of any such sort. You find that the countries that have the lowest rates of violent crime tend to use imprisonment less. That is the strongest correlation. It is still correlational data. The problem with time series analysis — although people have built careers in criminology as quantitative experts on the basis of time series analysis — is that even though it is a fancy regression analysis, is still just correlational data. For example, in the United States, in 1976, the figure was 9.6 per 100,000 murders per capita; in 1991, the figure was 9.8. There is no relationship. The reason for the decrease in the homicide rate in the 1990s has to do with the same phenomenon as in Canada — the percentage of young men in the population.
Another, more compelling point is that since 2002, the population of those imprisoned in the United States has gone up 10 per cent. The homicide rate has not changed at all. You can always pick arbitrary points in time and see changes, but if you look at the full range of data, you will not find any support. Even if we were to accept that it was a profoundly significant regression equation, it is still just a correlation; but it is not even that.
I do think it is fair to say it is junk science. I do not know any reputable criminologists who are touting the Marvell theory. If you read carefully the Marvell and Moody study, they themselves are somewhat critical of people who would draw cause and effect relationships from regression equations.
Senator Cowan: So you are not persuaded by Professor Mauser?
Mr. Boyd: I guess that would be a good summary of my opinion. Fortunately, I think he is in business administration, so we do not really cross paths. I think he is a gun enthusiast, so he follows in the steps of Mr. Marvell.
The Chair: I have one question for you, Professor Boyd, but I would also like to hear Mr. Rudin's comments on it.
I was greatly struck by your remarks about reverse onus. You are not the first person to raise serious doubts about the reverse onus provisions in the dangerous offenders section of this bill, and I suspect that some of those concerns are shared by some of the senators.
What struck me was your great concern about the balance of probabilities proof that would be required. When I read that, I took it as a modest aid for the offender, that at least the offender would only have to prove on the balance of probabilities that he was not dangerous; whereas if he had to prove beyond a reasonable doubt that he was not dangerous — as I think you said, how do you prove a negative? — he would be in even worse straits. If we were to preserve the reverse onus in this section of the bill but take out balance of probabilities and make it beyond a reasonable doubt, the bill would be harsher on the offender than it is now. Not that the bill is gentle on offenders, but we would be making it even harsher. I assume you do not agree with me, but I would like you to tell me why.
Mr. Boyd: I agree with you that that would be more onerous, but I had not realized that was an options being seriously explored.
The Chair: I thought that was one of the options you raised.
Mr. Boyd: No. It takes me back to the Supreme Court decision in Milgaard, where the Supreme Court said that the test of a wrongful conviction is that the offender has to prove beyond a reasonable doubt that he is not responsible for the crime; and the second tier of the test is that you have to prove on a balance of probabilities that he is not responsible for the crime. This is that second tier. I do not support either of those tiers, if you like, in this circumstance.
The Chair: Basically, you do not like the reverse onus, whatever the standard of proof may be.
Mr. Boyd: No, I do not like the reverse onus. I think it is unnecessary in this context.
Mr. Rudin: I go back to my early reading of Charter cases. Oakes was a trafficking case, and the Oakes test was the burden. If you have any drugs, the presumption is that you are trafficking, and you, on the balance of probabilities, can discharge that. The Supreme Court of Canada in Oakes said the problem with that reverse onus is that it will inevitably capture people who are not trafficking. Even though it is a balance of probabilities, obviously it is an easier standard for the Crown, because it would not be proposed otherwise. We already have a standard.
Professor Boyd raised an important issue. I do not think it is constitutional, but leaving aside constitutionality, the Charter is not the ceiling. Our aspirations as a society in Canada should not always be to minimally comply with what the Charter says. That would be a very poor set of goals to aspire to.
The Charter is not the ceiling, it is the floor. We have to think about the idea of depriving someone of their liberty for the rest of their lives — which is what this does — when it may not in fact be true that they are a danger beyond a reasonable doubt.
The Chair: I would like to thank you both very much. Many of us wanted to ask further questions of you, but unfortunately we have other witnesses who are scheduled and who have also made a great effort to be here, so we will just have to contain our impatience. We thank you both very much indeed.
Our next witnesses are Richard Hudler, the administrator of the Coalition for Lesbian and Gay Rights in Ontario; Nicholas Dodds, from the Age of Consent Committee; Jeremy Dias, the director and founder of Jer's Vision, and Katy Greg, a member of the board of directors of that organization; and Cheryl Milne, staff counsel from Justice for Children and Youth.
Richard Hudler, Administrator, Coalition for Lesbian and Gay Rights in Ontario: Thank you very much for the opportunity to address the committee.
I recently saw the Minister of Justice on television supporting this bill and expressing his dismay that anyone could oppose the protection of young people. We could not agree more if this bill protected young people, but we contend that it does not, specifically with regard to the age of consent aspect.
The information accompanying this bill clearly indicates that it relates to non-exploitive sexual activity. Existing legislation already protects people under the age of 18 for exploitive sexual activity. Rather than protect, this legislation only takes away the right to choices young people have held for over 100 years.
The short title of this bill is the ``Tackling Violent Crime Act.'' Consensual sexual activity is not a violent crime. This bill purports to respect and promote the rights and values reflected in the Charter of Rights and Freedoms and then proceeds to withdraw rights on the grounds of age. Is age not a ground in the Charter for which people are protected from discrimination?
We do not believe the Criminal Code should be used to regulate consensual sexuality. We believe that this legislation is not intended to protect but rather to control young people, and that it is an effort to reassert religious and moral values in Canada's laws and public policy by using the institutions of the state to stringently regulate sexual morality. This is something we are very familiar with in the lesbian and gay communities.
We can appreciate that very young people might not have the decision-making abilities to consent to sex, but research indicates that up until the age of 12, it is easy to observe distinct developmental stages in cognition. After that, however, maturity of thinking has only a modest correlation with age, so by the time young people are reaching the physical age to engage in reproductive sexual activity, their cognitive development has been consistent with their physical development.
If we claim that they have not reached a state of maturity to be making these decisions for themselves in our society, we are admitting that we have failed them by not providing adequate sex education resources. The Council of Ministers of Education of Canada reported in 2003 that the average age of first sexual intercourse is 14.1 years for boys and 14.5 years for girls.
The close-in-age zone and the marriage exemption show that the government acknowledges that young people have sex and are able to make decisions about sex, yet it presumes to regulate the choices young people are allowed to make.
For gay people, this is of particular concern. My first lover was 17 years older than me, and that is common. It is dangerous, considering the attitude towards sexual orientation in schools, for a young person to attempt to make sexual contact with a peer. Education is needed in the schools to change that situation but is vehemently resisted by the very groups who support this proposed legislation.
It concerns us that this legislation evades the need for better and more comprehensive sex education in the schools, which we contend would go much further toward protecting young people than does criminalization of their sexual behaviour. Developing their self-esteem, self-confidence and self-agency is a much more important way to protect them. Research overwhelmingly indicates that the social site of danger continues to be the family and the perpetrator is known to the victim. Leaving sex education in the home does not protect young people.
There is already widespread concern within the lesbian, gay and bisexual communities about the unequal enforcement of current provisions of the Criminal Code dealing with sexual relations. Gay and lesbian sex is disproportionately targeted or being seen as a more serious matter warranting more serious punishment than sexual relations involving members of the opposite sex. Our view is that this legislation will make the discriminatory situation much worse.
We worry that young people will not feel free to ask questions about sex, knowing that the activity is illegal. The counsellors will be afraid to discuss the topic with them for the same reason.
A young person involved with a person beyond the five-year age range will be afraid to even casually discuss it at home, knowing that all the parents will have to do to end the relationship is call the police. Support and counselling in the home will also be lost.
It disturbs us that no mention is made in this proposed legislation to correct the inequity in the law for anal sex, for which the age of consent is set at 18, despite the fact that the law has been found to be unconstitutional in several jurisdictions. This factor sends a strong message to the gay community that hostility towards same-sex relationships is a motivating factor behind this legislation.
In summary, I would say that we believe this proposed law endangers young people more than it protects them. It shows disdain for them by making decisions for them rather than consulting them and providing adequate educational resources. It is an attempt to undermine human rights and a separation of church and state. We believe that the age of consent aspect of this legislation should be withdrawn.
Nicholas Dodds, Age of Consent Committee: Thank you very much. I am 19. I graduated from high school a couple of years ago. I am here today representing the Toronto-based Age of Consent Committee.
The Age of Consent Committee is very concerned with the age of consent aspect of Bill C-2. We have some major grievances with that aspect of the bill and fought it back when it was Bill C-22 in the previous parliamentary session. I am here to present some of our concerns today.
Everyone wants to protect youth, and it is important that there is a framework in place to ensure that young people who need and want protection are able to get it.
That having been said, there are certain things you can do that have an impact on the safety and security of young people, and there are things that look good on paper but do not necessarily have a tangible impact on the well-being of Canada's youth. We think that the age of consent aspect of this bill, that is, raising the age of consent from 14 to 16, is one of those things you can do that looks good on paper but either has no effect or the opposite effect that is intended.
One of our major problems with the bill is that youth currently are free to seek out sexual health services if they decide they need them, and that is anything from STD screening to counselling to relationship advice. However, if the age of consent is raised from 14 to 16, youth who are in age-disparate relationships will end up probably being less likely to seek out help when they need it. If they need an STD screen and they are afraid of people at a walk-in clinic asking them for information about their sexual activities, who their partner is or how old they are, and they know that it is illegal for them to be having sexual interactions with somebody several years older, they will probably be much less likely to seek out those services.
This bill will not stop the sex that it purports to stop. Young people have always been sexually active. They will continue to be sexually active, and many people who are my age or younger do not even know that there is an age of consent. If this bill is enacted, we will be putting people in jail for crimes that they might not even have known were crimes. We will be putting youth in danger because they cannot seek out sexual health services.
It is noteworthy that the current laws on the books do in fact protect youth. A bill was passed back in 2005, I believe, that made several amendments to the Criminal Code, one of which allowed judges and police to decide whether a certain sexual relationship between somebody under the age of 18 and his or her sexual partner was exploitive or not. Passing this bill will mean that in cases where the relationship is clearly not exploitive, the police and the courts will not be able to decide on their own terms whether they should be prosecuting somebody. It will remove discretion.
This bill targets only non-exploitive sexual relationships between youth and adults and does not move to protect youth. You can put all of the people in jail that you like for having sex with youth. That will not stop sexual abuse.
The fact that the age of consent portion of Bill C-2 is in a bill that is being lauded as the ``tackling violent crime act'' really does violence to what is considered to be actual sexual abuse or actual rape or actual exploitation. Two people in a consensual relationship, regardless of whether or not you think that they should be having sex, is not rape and not molestation and not exploitation.
Finally, we believe that it is entirely possible that the five-year close in age exception, which has been introduced to make this legislation more palatable, could be struck down under a Charter challenge. I am not a lawyer; however, I do my reading. The Canadian Charter of Rights and Freedoms makes a point of saying that you cannot discriminate against someone on the basis of age. Many people have pointed out that the Charter also allows for reasonable limits on people's freedom, but the five-year close-in-age exception is not based on any empirical evidence. Why five years, and why not six years or four years? If a couple had an age difference of five years plus a day, why is that illegal, but if it were five years minus a day, it is suddenly not illegal? If this were actually brought to the Supreme Court and there were a test case where you had someone five years and a week older than their sexual partner and their sexual partner were under the age of 16, I would be surprised if this were not struck down. This law is against the spirit of the Canadian Charter of Rights and Freedoms. It definitely removes sexual freedom from youth. It definitely discriminates on the basis of age.
We would like to note that this portion of the bill has had very little consultation from youth themselves. It is easy to pass a law when it does not affect you. I am fresh out of high school, and many of my friends are still in high school and I know people who are 14 and 15 years old, and I am here today to tell you that this is not what youth want. This is not protection. This is an imposition by the government in the lives of young people.
What is worse is that the parliamentary process is hostile towards young people. It is hard to get to Ottawa to make a statement like this. It is hard to navigate the parliamentary process in order to get in on meetings like this, even for people like myself who have at least done this once before. I got lost coming to the Centre Block today.
Senator Cowan: It happens to us all the time.
Mr. Dodds: I do not think that the government can claim with any pride that this issue is over if a more proactive attempt to consult youth has not been made. The consultation that we should have seen has been absent. I can tell you that if some of the people I know who are 14 and 15 years of age who have a vested interest in this bill passing or not passing were here, which they cannot be because of school, family and work commitments, they would be telling you that they do not want this legislation passed.
Jeremy Dias, Director and Founder, Jer's Vision: Thank you for hearing us. I am the executive director of Canada's Youth Diversity Initiative. I have with me Katy Greg, who is one of our board members. We will try to be as brief as possible, because we do encourage dialogue and questions, as that is probably most important.
[Translation]
If you want to ask questions in French, please do not hesitate. We are completely bilingual and would have absolutely no problem answering questions in French. I want to apologize because I learned my French in Alberta, which means it is ``assez pire'' — I am joking.
[English]
We are an organization that works with youth primarily. We are a youth-run organization, which means all of our board directors look like Ms. Greg. They are in high school and at the beginning of university. I myself am in university, in my fourth year, and will be graduating this year.
We are very concerned about this legislation, and we are specifically concerned about the age of protection, formerly age of consent. I will highlight a few things in my brief and talk about a focus group.
Our primary objection to this bill is the fact that youth have not been consulted at all. We and Mr. Dodds are the only people who have spoken before the parliamentary and Senate committees. This is very concerning to us, mainly because this bill affects youth. There has been no effort by the parliamentary committee or the Senate committee or even the representative members of Parliament to go out into the community. The only member of Parliament who did so was an NDP member, Mr. Joe Comartin, and he spoke only to one Catholic group of five people. We are concerned that the only youth input inserted into the creation of this bill was by five youth of one small community in Canada.
The legislation is unlikely to assure that youth will not be exploited, which is our primary concern. At the end of the day, we are sitting at the table for the protection of youth. I am sure we can all agree on that. What you are looking at will not actually help youth but in fact make young people's access to sexual information more challenging.
One of the big things we do is sexual health education, but we also focus on GLBTQ — gay, lesbian, bisexual, transgender and queer — education. Our educators and colleagues have expressed an extreme amount of concern, saying that if this bill passes, they will be challenged when it comes to funding and when coming to the ministries, federal, provincial and municipal, and there will be a limitation and a reduced amount of access to proper safer-sex materials.
What does this have to do with protecting youth? The reality is that youth are having sex at younger and younger ages. The average is 14 in Canada, but the reality is that our friends are having sex when they are 10, 11 and 12 years old. The average is an average, but it goes down as well as up. It is scary. We go into the high schools all the time, and in Ottawa, between 60 per cent to 70 per cent of youth actually think there is a cure for HIV/AIDS. In Toronto, where they are considered to have the best safer-sex education, 50 per cent of youth think that there is a cure for HIV/AIDS. Most youth in Canada, especially straight youth, do not have sex with a condom. Those are serious concerns, because kids will do this whether we like it or not. If our goal is to protect them, then we should look at legislation and tactics that do so.
This legislation threatens to push youth sexual behaviour underground, and that we do not want. As educators, and I am one, we fight against pushing youth underground because it makes educating them more difficult. Members of our board do education about smoking, drinking and impaired driving. Youth will not tell their parents that they are going to a party, that they are going to get drunk and get high and that they are then going to drive home. They would never do that. They would say, ``I am going to a movie and a sleepover.'' Then you hear about them on the news. I have a friend who died because of impaired driving. They did not tell their parents they were drinking. They did not even tell their parents they were driving. They lied to their parents. What you are doing with this bill is encouraging your kids to lie to you. You are putting a false sense of control and calm in the community because you are not actually addressing the problem.
One of the major problems with this bill is that it is homophobic. The reality is that there is a disparity between the age of consent for anal sex and vaginal sex. It is awkward saying this in front of you because it is awkward saying this in front of anyone, and it is awkward putting it out there because nobody likes talking about this. It is an awkward issue. The Senate and this committee have an opportunity to address this disparity. Gay male sex is primarily anal sex, and heterosexual sex is primarily vaginal sex. We can debate whether or not it is ethical to not bring up this issue. Senators and members of Parliament have already said that this issue never came to the table, we are not discussing it, and it is not homophobic. The reality is that not looking at this issue and not taking this opportunity is homophobic. You have an opportunity now to address homophobic legislation and, by not doing so, you are turning your backs on GLBTQ youth and primarily gay male youth. That is a serious problem. That disparity in age is a reality. Why is it that a gay male youth cannot make sexual decisions until he is 18, whereas a straight youth can do so at 14 or 16, depending on what happens here? That is a serious problem.
Of course, protecting our youth from exploitation is what we are all here to address. The reality is that sexual exploitation primarily happens at home. Whether we like to admit it or not, most youth are assaulted by family members or friends or someone that they know, and it is really scary because we are not addressing the issue. This proposed legislation will preventing youth from getting more education on this issue. That includes not only the advice to put on a condom, but also the advice to make safer decisions such as if you are in a room with someone and you feel it is dangerous, get out. You would be surprised how many youth, especially young women, do not do so because they just do not know what to do. No one has ever told them what to do and no one has ever put them in that situation. This is especially true when it comes to a parent, an uncle or a relative, or a family friend who is already in a position of trust, so that relationship is very vulnerable to exploitation.
It has been demonstrated empirically that education works. Education seems to be the primary solution. Many of you worked on impaired driving legislation in the last 10 to 20 years. As a former MADD Canada youth representative, I was there. I remember. We saw, within 10 to 15 years, a total change in Canada, where at one time 40 to 60 Canadians were dying every day because of impaired driving. What did we do as a nation? Government at all the federal, provincial and municipal levels all lobbied together to educate our communities about the reality of impaired driving. Now in Canada we have actually reduced that number to one to two persons. It is a huge victory for Canada as a nation and it is something we should pat ourselves on the back for.
Why is it that when it comes to impaired driving we recognize there is an empirical solution that can actually address the problem, but when it comes to youth sexuality our solution is do not talk about it, legislate it, control it, limit it, stop youth from having the discussion and not invite youth to consult? As an organization, we had to fight for our place to consult, and we fought last year when it was Bill C-22. We fought for a seat at the parliamentary committee, which we did not get; again, we were told we were youth, we are not interested. Of course we had to beg and plead to get this spot, which we are very grateful for. At the same time, we really feel we had to fight for it, and it is unfortunate that we had to do so. It was very difficult, especially as a youth organization. As Mr. Dodds stated, we are not as skilled or as qualified.
The reality is that youth sexuality has changed in the last years. Your experience with youth sexuality is very different from the experiences we face today, and we want you to educate yourselves about that.
We ran about four focus groups with approximately 20 students each. A number of highlights came up: What kind of effect do you think this bill have on you? Nothing. Do you think this bill will protect youth from being sexually exploited? They said no. Do you feel that this bill is homophobic? They all said yes. We asked them, if they could say anything to you senators, what they would say. All the youth said, ``Youth implore you.''
One youth in particular, who was sexually assaulted by her uncle and had never told anyone except us at this focus group, said that this bill will not do anything to help her. We work with youth every day who are marginalized, sexually assaulted and victimized. You have an opportunity now to make history, to make a change and to help those whom you are supposed to be working for.
Again, if we pass this bill we might pat ourselves on the back and say that we are making a dent in the system, but the reality is that we are also passing up an opportunity to make a real change, to make a real difference.
We implore you to please reconsider, to slow down this process, go out into the community and invest resources in asking youth what they really want. Go to the empirical evidence and ask the professionals in the areas of sexual health, sexual identity and sexual exploitation what will make a difference. They will tell you education, and then you will have to work with an entirely different ministry and work together to address this problem.
This is a simple solution to a complex problem. I implore you, on behalf of us and the youth who are currently being exploited, to please reconsider what you are doing and broaden this process. Take this opportunity to actually help youth, because that is what you can do today.
The Chair: Thank you very much, Mr. Dias. Let me just observe that although it may have felt as though a fair amount of time elapsed between your request to appear and your invitation to appear, you did not have to plead or beg. It is the heaviness of Senate procedure that meant that the committee did not have a mandate to invite any witnesses to appear. We knew from the outset, from the moment this committee had the reference to study this bill, that you wanted to appear and we agreed right away that we wanted you to be here.
Mr. Dias: Thank you so much. I recognize that there were numerous senators and your offices that made this possible, but please recognize that we did make several calls and there are several unreturned phone calls and unreturned emails, both from members of Parliament and from senators. Not all senators and not all members of Parliament are as gracious as you are. We do apologize if we do not recognize your graciousness and your attention.
The Chair: We are all gracious and lovely. It is the system. For anyone watching this on television who wants to know what to do if you want to testify before a Senate committee, the best point of entry is to get in touch with the clerk of that committee once the bill has been referred to the committee. The clerk is the keeper of all the documents and all that stuff. In this case, it is Mr. Adam Thompson.
Cheryl Milne, Staff Counsel, Justice for Children and Youth: Thank you for inviting us to speak on this bill. The brief that we have submitted is the same brief that we submitted to the House committee, where it was presented by Martha Mackinnon, our executive director.
The Chair: I do not think that brief has in fact been circulated to senators. We will pause for a second to do that.
Ms. Milne: I apologize for its being addressed actually to that previous committee, the Standing Committee on Justice and Human Rights at the House. However, this is the position that was passed and approved by the board of directors of Justice for Children and Youth. It makes reference to the previous bill, Bill C-22. Any references to that should be read to be Bill C-2.
I will start from the back and move forward, to draw your attention to our recommendations. We are suggesting that the five-year close-in-age provision be seen as a presumption as opposed to an absolute. We acknowledge first that we agree that children need protection from exploitation and predatory conduct, but we recognize that young people are individuals and that age difference in itself does not always indicate exploitation or power imbalance.
You heard statistics from Mr. Boyd this morning and from some of the recent studies that indicate that there is a high percentage of coercive sexual activity among young women in the 14-year-old age group. However, that coercive activity is not all with people five years older than them. It is amongst the young people that this bill does not cover at all. The issue is really around the complications about what consent means and the pressures that young people are under. It is not necessarily about age. Age just serves as a proxy in this bill for exploitation, but it is not exact, and there are problems with using only age as a definition of exploitation.
A children's rights approach would allow for the differences between individual young people and the circumstances of a particular case to give sway to arbitrary age cut-off, to allow for a more nuanced approach that looks at whether a relationship is exploitative or not. If it were a presumption that could be rebutted, then that would be more protective of young people from what we are truly most concerned about, which is actual exploitation and coercion of young people.
The main concern we have about the bill has been echoed by the previous witnesses, which is that the focus is on young people rather than on the perpetrators of sexual exploitation. This emphasis on the young person's age can be very misleading to young people themselves. The sections of the bill are fairly complicated in terms of calculation of age. It is very difficult to explain to young people what this means.
One of the roles of Justice for Children and Youth is to provide public legal education to young people. We have difficulty explaining to young people the Youth Criminal Justice Act, an extremely complicated piece of legislation that I have trouble understanding at times, and as a lawyer I have been practicing in this area for over 17 years.
Legislation aimed at young people that is overly complicated will end up being misinterpreted. They will think that what they are doing is illegal or needs to go underground and not be talked about. We have already heard an eloquent explanation of the concerns about young people's behaviour going underground and, therefore, putting them at greater risk.
We also agree that section 159 of the Criminal Code should be repealed. That is a basic equality rights position. Whether or not this bill is passed or this proposed section remains in the bill, we need a targeted public education campaign to inform young people of the laws governing sexual conduct that affect them to deepen their understanding of exploitation or luring and to empower them to seek health and other needed services. If they are afraid that if they go to a doctor or to other health professionals to seek advice the person they are in a loving relationship with will be charged, they will not go. There needs to be a more subtle approach to this in terms of how we define exploitation. Also, a very clear message must be sent to young people about what their rights are and the areas they should be speaking to health professionals about and that they have privacy in making those inquiries so that they can better look after themselves.
Frankly, as has been mentioned by others, the motivation behind this part of the bill is really a distaste for and a suspicion of young people under 16 years of age having sex. We have to face, first, the reality that it happens and, second, that the way the Criminal Code works, we are not talking just about sexual intercourse. We are talking about a wider range of sexual behaviours which, if we really thought about what young people are engaging in at that age in experimentation and learning about themselves and their bodies, we would be less fearful of what motivates this bill. That gets back to what Mr. Dias was saying, that we have not talked to enough young people. Yes, there is a process to come before this committee. The problem was with the very inception of this bill: consultations should have taken place with young people before any drafting took place. That is what should have motivated it.
To conclude, I will make reference to the United Nations Convention on the Rights of the Child, Article 12, which says that we are to consult with young people and find out their views, opinions and wishes in every decision we make that affects them. This bill affects young people specifically, and even though there is a perception that we are getting at the adult bad guys, the fact is that it is focused on young people's age and activity. It is called ``age of consent.'' It is not called ``adult exploitation of youth.'' It is about age of consent, which comes from the young person. We need to think about the message that comes with that. We need to talk to young people about what they think the impact of this bill is.
Senator Stratton: These have been interesting presentations. Many of you have talk about youth, and someone talked about what you told your parents when you went out. When I was a kid and I was asked by my parents, ``Where did you go?'', I said, ``Out.'' When they asked what I did, I said, ``Nothing.'' I was consistent. I think that was a rule that we all had and still have. Kids will do that, no matter what their age.
I want to get at the fundamental principle here. We are not interested in interfering with the sexual activity of kids under the age of 16. Yes, kids are sexually active under that age and over that age. That is normal and healthy. It does not matter whether it is heterosexual or gay, in my view. What does matter is the sexual predator. That is who we are interested in. This bill is intended to attack and go after those individuals who operate both on the Internet and through luring. They do this in Winnipeg through prostitutes on the street as young as 12 and up to 15, 16 and 17 years of age who are lured into prostitution by an older person, a sexual predator, who gets them hooked on drugs. They are then turned out into the community to prostitute to pay for their habit and to pay the predator. That is what this bill identifies and is going after. That is the important issue here that we have to remember. That is fundamentally what this bill does. I do not intend to lecture here, but to go back to the root reason why various aspects of this bill are here.
I appreciate your concerns. However, if you argue against that kind of protection for children, what is the difference between 14 and 16 years of age? They have found that that is indeed the problem. I have granddaughters and grandsons who are hitting that age. Their parents are petrified of what is transpiring over the Internet. The control on the Internet is pretty strict. That is where we are coming from.
I appreciate your comments with respect to that. If you disagree with that approach, how do you address it? I understand your concerns. How do you address those concerns?
Ms. Milne: First, the example you provided is illegal now.
Senator Stratton: The law does not work right now. Professor Langevin said yesterday that existing laws are not working, so we have to do something more.
Ms. Milne: That goes back to education and law enforcement. It is not about the fact that the law as it now exists does not work. We have laws about consent and exploitation, and they need to be applied. We do not need to make more draconian laws that take away from the nuances and target youth to make the existing laws work better. You are using the law incorrectly. What you have described is already illegal.
I think also the parent who is afraid about the 14- and 15-year-old girl being lured away is equally afraid about the 16- and 17-year-old girl. This bill does not deal with that at all. It is really about a fear more generally of young people being exploited. That goes back to the exploitation provisions that now exist and which in our brief we say were very good changes to the law, to open up the concept of exploitation and to be more accurate about the kinds of relationships that are not just necessarily in neat categories but relate more to the dependency that young people can have.
I do not think there is any difference, and when you get into arbitrary age cut-offs, as a parent, I would be just as concerned about my 16-year-old going off with an older person in an exploitive relationship as my 15-year-old. This is about not being comfortable with sexual behaviour of young people.
Senator Stratton: In my view, that response does not address how you get after the predator. That is what we are talking about here. Your answer did not address that, in my view. How do you go after that predator?
The Chair: As you know, we have a growing list of questioners. Did you want to respond?
Mr. Dodds: To address the senator's question, the way to get at the predator is to make sex illegal. If you make all sex illegal, then you can prosecute anyone and everyone who does anything that is sexually immoral or bad. Unfortunately, that is not an option. We live in a society that is steeped in sexuality. Human beings are sexual creatures. It is how we procreate. For many people, it is how they express love for each other.
You can come up with any age as an arbitrary cut-off for when people should or should not engage in sexual conduct. There will be predators everywhere, no matter how old they are.
Mr. Dias: Senator Stratton, that is an excellent question. The reality is that youth are being exploited, and I know them. I have been to Vancouver, Edmonton, Calgary and Winnipeg. We have met with them and we have asked them, ``What will help you?''
None of the committees has asked that. When they were drafting this legislation, the drafters did not ask that question of the people who are being sexually exploited. The first step to address the problem is to ask these people, ``Who will help you and prevent you from being exploited?'' That is the elephant in the room. That is the problem that has not been addressed.
Other ways to address this problem that have been empirically demonstrated are education and supporting law enforcement. In Ottawa, if you get raped and you are a woman, the chance of your reporting that rape is 1 per cent. The chance of your actually passing that rape onto a Crown attorney is another 1 per cent, and the chance of that rape actually being convicted is another 1 per cent. If you are raped in Ottawa, the chances of it actually carrying through the process are 0.0001 per cent. That is not because we do not have laws against rape in Canada, but rather because the system and the society around it do not foster us to address the problem. What have seemingly addressed the problem are education, for some reason, and revivals in the legislation. It was not very long ago that if a woman was dressed inappropriately, someone could rape her and legitimize that rape by saying, ``She was dressed inappropriately and, therefore, I raped her.'' The same argument is still made today. In some cases, because of it, the perpetrators get away with it. That is very scary.
I agree with you. There is a serious problem in Canada when it comes to that situation. However, the problem is that we are not working with these people to find a solution and we are not supporting the solutions that have proven to work.
Senator Merchant: I wish to thank our witnesses for appearing before us and enunciating very clearly the concerns that you have on behalf of young people.
For our information, I will refer to an October 2005 Department of Justice statement, which says basically what you have been saying, namely that educating youth to make informed choices that are right for them is better addressed through parental guidance and sexual health education than by using the Criminal Code to criminalize youth for engaging in such activity.
Have we not been following this? I think what you are saying is that we are not following our own statements as a government. Do you consider this new bill to be a progressive step or a regressive one, and why?
You are saying the reality is on the ground. Do you think that laws should follow trends? If we make laws that are regressive and are not obeyed, is there any worth to such a law? That is, if it will drive activity underground and endanger people's health or young people's health, how do you feel about that kind of law?
Mr. Hudler: In reference to the education part, yes, what you read was very important. Education is more important. I think that this bill, as it is drafted, evades education. It is saying that sexual predation is against the law anyway, so we do not have to teach youth how to protect themselves or give youth the agency to protect themselves even against the predators, as the other senator suggested.
I will just address that part of it at this point.
Mr. Dias: I totally agree with everything you said. Additionally, we need creative solutions. We need intergovernmental, inter-committee solutions that address this problem. We need the federal government. If you are going to create a law, you need to work with the ministries of education to implement that law. We need more creative solutions to address the issue. We have been repeating over and over again that we need consultation from youth who can be exploited and from youth who are in risk of being exploited and from youth who are considered to be bystanders who will never get exploited and are privileged and lucky enough to never experience that.
At the University of Ottawa, 25 per cent of women are sexually assaulted. Can you imagine that statistic? At the University of Ottawa, at the university level, educated people are being exploited by their peers, by their TAs and by professors and upper administration. How is that happening in Canada? This law will do nothing to help those people at all.
We want to remind you that you have an opportunity now with the debate on the table to fix this law and change it and make it bigger. The way to do that is to consult people who have lived through it and people who are experts on it. Find creative solutions. Work both intergovernmentally and broadly, too. This will not be solved by passing one piece of legislation. Look at existing legislation. Work with Crown Attorneys and police officers and ask them, ``Why is it that when you see a 14-year-old prostitute on the streets of Ottawa, or anywhere in Canada, you cannot go and pick them up and put them in a shelter and get them help?''
We work with prostitutes and street people. One of our board advisors is on the street and she works the street. We asked her, ``Why do you not go to the shelter?'' She replied, ``Because I get raped by the people who work in the shelter.'' Can you imagine that?
The system and the process that we work in is so dangerous, I do not feel safe in the shelter system. That is what we must fix.
Senator Di Nino: Welcome to you all. I have a quick comment to Mr. Dodds. If you were nervous, I would like to see you when you are not nervous. That is sort of a little praise. I think you did a great job. I think you all did a great job in your own ways.
Let me first say that I am coming at this as a resident of the city of Toronto. Maybe that sort of clouds my position a little, but I am mainly looking at the statistics presented by the Canadian Centre for Justice Statistics, a very respected organization, which has said that since 2003 sexual offences, other than exploitative offences — and we are talking about sexual offences that this particular piece of legislation is supposed to be dealing with — have increased some 6 per cent. The statistic that is rather disturbing to me is that girls aged 12 to 14 are the most vulnerable group for these offences. Let me add that the survey was done only with kids under the age of 14. I do not know whether it was just girls. Furthermore, we do not know about the 15-year-olds as well as the 16-year-olds, because the survey was not done for that age group. They are talking about girls under the ages of 12 to 14, who are the most vulnerable for these offences. The most startling of statistics is that only 8 per cent of these crimes are reported. Multiply the numbers, and this is not just a small problem.
Therefore, my first question really goes to Mr. Dias. Your presentation was actually pretty good. You made some good points. However, when I read your brief that was prepared for us, there are three issues that I think take away from your presentation and, frankly, make me ask whether you really understand what this legislation is all about.
On page 1, in the last paragraph, you talk about criminalizing sex by youth under the age of 16. This bill is not about criminalizing sex by youth under the age of 16; rather, it is about criminalizing those adults who are taking advantage of our children. On page 2, in the second paragraph, you also mention making it illegal for schools and sexual support services to provide safer-sex education. Nothing in this bill does that. Finally, on the third page, in the top paragraph, you talk about holding youth criminally responsible for crimes. Again, this bill absolutely does not do that.
Mr. Dias: We are talking about youth understanding the bill, and numerous youth were consulted in creating this bill. Youth feel that with this legislation we are criminalizing sex, making sex illegal, making consensual sex illegal, even if it is between someone who is 15 and someone who is 19. That is your first point.
Regarding making it illegal for schools and sexual support services to provide safer-sex education and resources, this bill will make it much harder for resources to get in there; and resources and organizations already have a hard enough time. I think the language used is a bit inflammatory, but at the same time it gets the point across.
Senator Di Nino: It is wrong.
Mr. Dias: It is to prove the point that if this bill passes, it will make it very difficult, and it is already difficult.
There is a principal at a high school in Ottawa who refuses to have any safer-sex education in her school, and she is a public high school principal. No safer sex, no condoms, no education, no talks about abstinence — nothing. You cannot even mention the word ``safer sex'' in her school.
Senator Di Nino: All I am saying is that I think your language is incorrect in all three cases and it takes away from your presentation, which on balance I thought had some merit.
I have one brief question for Mr. Hudler. Do you believe that we should have an age of consent at all? Do you think that we should eliminate age of consent completely and let 8-, 9- and 12-year-olds make decisions on whether or not they should have sex?
Mr. Hudler: No. I tried to address that by saying that up until the age of 12, it has been seen that children have not developed cognitively to that point.
Senator Di Nino: Do you think that we should not increase the age of consent but instead reduce it to 12 years of age?
Mr. Hudler: I cannot really answer that. I think 14 is probably a good age because it is around the age of puberty, around the age when children's thinking does come to the point where it is equal with their physical development.
I think it is a good question. We know that there is sexuality in children even younger. That needs to be studied more than it is. There is a lot of concern about even discussing it, because it is frightening to people. We are quite satisfied with the age of 14, but there is a lot to be learned about the question.
Maybe there should be a test. In many societies, when children become adults, they go through some kind of ritual. Is there some other way of deciding when they are ready? I do not know. It just seems to be our problem, the fact that we have to have a particular age.
Senator Cowan: Ms. Milne, as I read section 153 of the Criminal Code now, there would be a protection there if you had a marriage between a 25-year-old and a 15-year-old, as an example. However, the marriage exception which is contained in Bill C-2, as I understand it, might remove that protection. Is that your understanding?
Ms. Milne: My understanding is that the marriage protection is sort of a grandfather clause, so that if the bill changes, then those who are currently in a marriage relationship will not all of a sudden become illegal.
Senator Cowan: You do not see that there is less protection if Bill C-2 amendments were passed?
Ms. Milne: I do not think so, no.
The Chair: I stand to be corrected, but I think that in the original version of the bill that you may have examined, it was a transitional provision for marriage. It no longer is. Marriage is okay.
Senator Cowan: Then marriage is a blanket exemption now.
The Chair: Yes.
Senator Cowan: In that case, there would be less protection, because section 153, as I read it now, does not have an exception in the case of the exploiter being married to the ``exploitee.'' In this bill, absent the transitional provision, marriage would be a defence.
The Chair: Yes.
Ms. Milne: That is a pretty narrow group of people, and not an issue we are particularly concerned about. There are some cultures where that might be of concern, and certainly there are some communities in Canada where that might be of concern. I am thinking most particularly of Bountiful in British Columbia. That is worth looking at and thinking about in terms of the impact of this bill.
If you look at that situation from a children's rights perspective as opposed to a marriage rights perspective — which is how it has been looked at — it is troubling.
Mr. Dodds: If I am not mistaken, the marriage exception was put in as one of the Justice Committee recommendations the last time around.
In Nunavut, it is legal for a 14-year-old, with parental consent, to marry somebody who is an arbitrary number of years older than they are. Just as a side point, it is interesting that just because somebody is married and just because parental consent is involved does not mean that there is not exploitation happening.
The Chair: Indeed, and this does not even address the question of common-law unions, which have raised some questions.
Senator Andreychuk: I am mindful of the time. I think anyone who wants to talk about involving young people and children in legislation that affects them has only to read the Senate report Children: The Silenced Citizens. It is all there.
As a Senate, we appeal to this government, as we did the previous governments, to take more seriously the rights of children. Bill C-2 is not the exception; it seems to be the rule of how governments have handled children's input.
I am pleased you are here. I have also heard from young people and contacted young people. Interestingly, they have emailed. They have used the modern tools to get at us rather than the traditional tools, which is coming before a committee. I think, Mr. Dodds, you pointed out that it is difficult getting here, but these are the traditional methods of how we get involved. Young people seem to be using the new methods to get to us, and we do hear from some of them.
I have a question for Ms. Milne. We tried to get at what was really criminal behaviour — the luring, the duress, all of those things — and we tried to trap that under previous legislation. As we did with rape and abuse of women, et cetera, we must have education. We must work with communities, the school system, parents and social services, and we must do work on health issues.
There are many issues to tackle at once. Criminal law is one prong of the strategy to protect young people. We must say, through our criminal law, that adults cannot take advantage of young people for their own benefit. If we have to bring young people into court to prove that they consented to the relationship, we will get into many issues. What is informed consent? Whether a relationship involves a prostitute and a pimp, a wife who has to testify against her husband, or a young person who has to testify about an older person he or she is having a relationship with, it is very difficult to identify informed consent.
Although we will see whether this is accomplished, the intent of this bill is to send a signal through the criminal law that we collectively will not except the undue influence that an adult has over a young person, and that when adults approach a young person in any sexual way they had better be very mindful that they are not in an equal relationship. To determine whether it is a beneficial relationship for the young person is very difficult. What I thought was beneficial to me at the age of 14 was certainly different from what I thought was beneficial at 16, and is certainly different from my perspective today.
Age limits are arbitrary. We set the limit at 14. Other countries have set it at 12 and 13. However, New Zealand, Australia and the U.K. have set it at 16. We are moving the yardstick from 16 to 14 to move away from having to establish informed consent. Setting the limit at 19 was a judgment call by the minister after consultations and by the House of Commons after discussions there. We will have to make the judgment here on whether we think it is right.
Do you not agree that we are trying to signal to adults that being persuasive with young people is exercising an unfair advantage? If persuasiveness is just charm, that is okay, but undue influence is not acceptable, because adults do stand in a different position than children. If that were not true and we were all equal in everything from birth, why would we have age of majority at all?
Ms. Milne: I think that is partly why Justice for Children and Youth has taken a middle road with this and talked about a presumption as opposed to simply saying not to use the age exemption. We acknowledge that using age is a proxy for exploitation, getting at exactly what you are saying.
My difficulty is that we are saying that we have failed young people because we have not empowered them through information. We have particularly failed young women at a time when feminism seems to be old fashioned. We had better revive it. Statistics show that it is mainly young women who are being exploited, and they are not being exploited only by people more than five years older than them. They are being exploited or coerced into behaviours by young boys they are going to school with because there is a culture in which they are not being empowered to say no and mean it. They are not being told that they have power to say no to these kinds of behaviours, so they are reporting unwanted sexual activity at quite a high rate in the most recent studies.
By this bill we are saying that we have failed. We have failed to educate, because we do not like to talk about this stuff. We have pulled back on funding of women's organizations, and through that we are saying that we do not care about young women. Rather, we will do it through the criminal law, which we all know is a very blunt instrument. It will catch situations that do not fit into the concerns we all have. That is why we have suggested a presumption rather than an arbitrary cut-off, giving some credence to the fact that there are relationships that, although we may be uncomfortable with them, are not exploitive.
Senator Andreychuk: I do not think education alone works, or the other suggestions you have made. I believe that criminal law is an acceptable tool, particularly when the sexual activity of young people is not what we are addressing. We are addressing the fact that older people are taking advantage of children.
I agree with you. The age of 19 is arbitrary; we could have set it at 21. However, there comes a point when an adult should not take advantage of a youth.
One arm for enforcing this is the federal criminal law. We must recognize that there is much provincial responsibility for education and social services, et cetera. I am not sure I would say that we failed. We have a struggle, and it is to change attitudes and opinions and to give more resources.
Ms. Milne: When the changes came through in 2005 to expand the concept of exploitation and positions of trust, we did not do a very good job of educating people about what that meant. Therefore we are here now, in 2008, trying to cure what that was supposed to cure, but we never did anything to ensure that people were educated about the changes to the law then, and we have not seen the kind of prosecutions that we probably should have seen.
Essentially, we are going back at it again. We changed the law then but did not really do anything as a result of the change in the law. It was written on the books, and now we are going to write something else on the books.
Education is a very important part. Some comfort seems to be taken simply from arriving at a new age. We have heard people say that it will not make much of a difference if people do not know and understand the law. Young people will behave the way they do. They may not even understand the law as it is now. They are clearly engaging in behaviour that would be illegal, in that young women are being forced into situations they do not want to be in, and they are victims of crime that they are not reporting. We are doing a very bad job with the existing law. If we did a better job with that, we might see more improvement in that area.
Mr. Dias: Senator Andreychuk, I do not think there is any argument that making changes to the Criminal Code will make a difference. The point is that we must look at this as an opportunity to make a broader difference. The reality is that this legislation is homophobic, whether explicitly or inadvertently. We can debate that ad nauseam. The fact is that it does not work with the ministries of education across the country, which it should. It does not work with the police or the Crown attorneys, which it must, and it does not address their challenges, those being why people are not reporting crimes to the police and why the Crowns are not able to prosecute those crimes. It does not address exploitation within the family and between friends, which is the main problem in Canada. Statistics show that the majority of youth who are sexually exploited are exploited by a family member or a friend, and this bill does nothing to address that.
This is an opportunity to find creative solutions. My organization does not deny that the Criminal Code can be used as a tool, but we must broaden that tool and explore other options.
If this bill passes as it is, we all know that governments and politicians will say we have solved this problem, but in truth it will make little difference. Where you stand, you have the opportunity to make a difference: take this opportunity, expand it and broaden it and change the way sexual exploitation happens in the country, and help save lives and save youth from what is happening to them.
Mr. Dodds: I am not quite sure how to make this point. What you were talking about earlier regarding informed consent and not wanting to put youth through the legal wringer to get a conviction for a sexual assault that might have occurred is definitely a concern. In that sense, the age of consent legislation might address at least a portion of that issue. I concede that. That is fine. However, the problem is that we will be catching in this dragnet relationships that do exist but that do not fit the bill for sexual exploitation.
Another concern was that adults have undue power over young people, and they can use that power to exploit youth. I completely agree. However, it is easy as a society to pass a law to try to address something like that. If you outlaw sexual activity between certain age groups, then I suppose you can deal with that in a blunt way. Although it takes a lot more effort, it would be more valuable to address why it is that young people can be so controlled by adults. That is being treated as a radical statement. However, in our society, young people are told to respect their elders. People older than you should have more power over you because they know more things, have more experience and whatnot. In our society, it is important for young people to treat adults with almost blind faith. In some cases, it is necessary, for example, where you have very young children who are in a school setting, or there are parents telling their objecting kids what to do, because the parents do not have time to explain the reasons.
What I have seen, especially in high school, is the disempowerment of young people. Young people do not believe they can make a difference. Young people do not believe that adults listen to them. Many youth are resigned to simply doing what adults tell them because that is the culture we live in. It is important to recognize that young people can make proper, informed decisions on their own.
I picked up a book called The Case Against Adolescence: Rediscovering the Adult in Every Teen, by Dr. Robert Epstein. He has a PhD from Harvard and edited Psychology Today for ten years, so he is not a crackpot psychologist. His main statement is that our society, particularly Western society, treats young people in a certain way that gets irresponsible behaviour out of them. There are subtle changes to our society that we can make that will empower youth not only to be more responsible but also to make better decisions and take charge of their own lives.
What is being proposed today is a band-aid solution to a problem that exists because of certain social conventions that we have set up. If we want to get to the root of this problem, we need to challenge social convention that tells young people simply to do exactly what adults tell them, follow the status quo and the social paradigm that puts adults in power and disempowers young people. That is difficult, because many adults see that as being disempowering for them. They think they will not have any power left and not be able to control young ruffians. That is based on the assumption that youth need control.
Before we pass a band-aid solution to this, we need to address the social issues that caused the formation of the problems we are currently seeing. We need a more in-depth approach, and this one is too shallow. Please listen.
The Chair: I want to thank you all. You have made important points. We are particularly grateful for the youth groups that have been willing to appear before us. We do want to hear what you have to say, and we do listen. You have been very skilled and persuasive witnesses.
Mr. Hudler and Ms. Milne, I am not sure you want to be called representatives of youth groups, at least not directly, but you have also contributed significantly to our study of this bill. We are grateful to all of you.
The committee adjourned.