Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence for February 20, 2008 - Morning meeting
OTTAWA, Wednesday, February 20, 2008 - Morning meeting
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10 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.
The Chair: 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.
We have the great pleasure of having as a witness for this first session this morning Professor Julian Roberts, who
has joined us by video conference, one of the wonders of modern technology.
Can you hear me, professor?
Julian Roberts, Professor of Criminology, University of Oxford, as an individual: I can, indeed.
The Chair: I think you are familiar with the procedure in these committees. We ask if you have an opening statement
and, if so, to deliver it. We then ask you questions. Is that agreeable to you?
Mr. Roberts: It certainly is.
The Chair: Splendid. If you could begin with your statement, that would be great.
Mr. Roberts: I would like to thank the committee for the opportunity to give my evidence here today. Sentencing
and criminal justice reform is a complicated business, particularly in a jurisdiction like Canada, which, with its federal-
provincial constitutional arrangements, is more complex.
I will not say very much. I said some of these things before and some of you may be tired of hearing them. I will
focus on the sentencing provisions of the bill, and, in particular, the minimum sentence provisions. I want to make a
limited number of points about these provisions and their likely impact.
Let me precede that by a comment on the relationship that should exist between Parliament and the independent
judiciary. The tradition that has existed for the last 30 or 40 years in Canada, and elsewhere I might add, has been for
Parliament to establish the parameters of the sentencing process — and that includes maximum penalties — and
occasionally to codify important principles like proportionality. However, Parliament has always been reticent to
intrude at the level of directing courts to a specific sentence. In other words, Parliament has acted with reticence to
create mandatory minimum penalties because they effectively remove judicial discretion and prevent a court from
establishing a proportionate sanction. They prejudge the seriousness of an offence and the level of culpability of an
offender for that offence.
It is my submission that Parliament should be very wary about intruding into the exercise of judicial discretion in
this way. You would do it on an exceptional basis only. I will give you an obvious example with which I think everyone
Murder is an offence so serious that only a custodial sanction would be appropriate to most Canadians. There is a
compelling argument, and some may disagree, that murder should carry — and of course it does — a mandatory
sentence of imprisonment. However, the same cannot be said for a range of other offences, including some of the ones
that are affected by this bill.
What is wrong with mandatory sentences and custody? Why not have a lot of them? The answer is twofold. First,
they violate the principle of restraint, that is to say, the codified principle of restraint by which a court must not impose
custody unless no other sanction is sufficient to meet the objectives of sentencing. You cannot judge, as I mentioned
before, the seriousness or culpability level of an offender when you are sitting in Parliament; only a judge can decide
that. If you predetermine the sentence that will be imposed, you are violating the principle of restraint because some
offenders will not necessarily warrant the minimum sentence of custody.
The second principle, which is even more important because Parliament codified and designated it as fundamental,
is the principle of proportionality that I believe Senator Joyal referred to in a previous meeting. This principle simply
says that the sentence that is imposed should be proportionate to the seriousness of the crime and the offender's level of
responsibility or culpability for that offence. Again, Parliament cannot prejudge that. Proportionality must be
established by trial courts, guided by the Court of Appeal, or by the Courts of Appeal in Canada. Those are two
important principles that are violated by the creation of these sanctions — mandatory minimum sentences of custody.
Let me turn now briefly to the grounds. Why would you want to create a mandatory sentence of imprisonment? One
ground is that the conduct is so serious that no other penalty will suffice. I have given the example of murder. That is
not the case with these offences. These are serious offences. No one is contesting the position that someone who
trafficks in the possession of a firearm should go anywhere other than to prison. The question is: How should they go
there and for how long?
In order to create a mandatory sentence, you would need to consider all the other sentences in the Criminal Code.
There is no evidence that the government has done that. For example, if you just stick in the mandatory custody
sentence five years for the second or subsequent conviction for trafficking in or possession of a firearm, prohibited
weapon, restricted weapon or ammunition, which are sections 99 and 100, you are effectively imposing a pretty severe
sentence on an offender who is guilty of a less serious offence than someone who gets a more serious penalty. That is a
mouthful, but let me give you a simple example. The average sentence for manslaughter in Canada is about four years
imprisonment. You have to ask yourself this question: By creating a five-year minimum sentence for the second
conviction of this offence — trafficking, et cetera — is that really appropriate? Should people convicted of the most
serious offence of manslaughter really be punished less severely than this offence? I think most people would say that is
a violation of proportionality because people convicted of manslaughter should be punished more harshly than people
convicted of these firearms offences.
I do not think there is an argument to be made — and I do not think it has been made by the government — that
these offences are so serious that they warrant such stiff mandatory minimum sentences.
That turns to the second ground for introducing one of these penalties, which is deterrence; that is, if you introduce
a stiff mandatory minimum sentence, you will deter offenders. The evidence here, which has been referred to at
previous meetings, is very mixed and offers almost no suggestion that a tough mandatory minimum sentence will lower
the volume of these kinds of offences. There are many things can you do. You have done some things and this bill does
some important things such as reverse onus. However, anyone who thinks that creating a five-year minimum sentence
on second or subsequent convictions will more effectively deter offenders is dreaming because offenders do not think
that way. They do not reflect; they do not consider. It is unfortunate, but they do not. The government's evidence there
is very shaky.
At a previous meeting, a representative from the Department of Justice Canada said that the evidence suggested
there was nothing conclusive in the deterrence literature. That is my reading of it, too, and that is the reading of
sentencing experts. It would be nice if we could deter offenders by just increasing the severity of mandatory sentences,
but there is no evidence that this is in fact the case. I think, therefore, that there is not much justification for having
I will make a last couple of points. A couple of people have said, ``Fines are a bit out of date, so let us increase the
amount of fines for various offences.'' I am talking about impaired driving now. I think that is a reasonable position. If
the fine goes from $600, which it has been for many years, to $1,000, then that is good. There has been inflation, but
you cannot make that argument about imprisonment. You cannot say that since the penalty four or five years ago was
three years of imprisonment, we should make it four or five now. That is inappropriate penal logic. There has to be an
argument for introducing a stiff mandatory minimum sentence, and the sentence has to be introduced with a
consideration of other offences in the Criminal Code. The government may have done something about that, but I see
no evidence of it.
Finally, I did a review of mandatory sentencing around the common law world a couple of years ago, and I found
that pretty well every jurisdiction has a small number of mandatory sentences. They vary in the severity and the nature
of the crime for which they are imposed, but they share one important consideration: Nearly everywhere, even in South
Africa where they are particularly tough, they allow some degree of judicial discretion, and that puts Canada out on a
limb. In the event that the court found that there were exceptional circumstances, the court could impose a sentence
below the statutory mandatory minimum.
I think that is a reasonable feature of a mandatory sentence. I would encourage the committee, if it is mindful to
proceed with a bill that creates sentences of this nature, not to deprive judges of some residual discretion because to do
so is quite anomalous in light of mandatory sentencing in other jurisdictions
The Chair: Thank you very much.
Senator Stratton: Your testimony was interesting, and I appreciate it very much.
The intent of this bill is to get violent repeat offenders off the streets and into jail so that they do not have the
opportunity to repeatedly offend, thereby causing offence to the citizens of the country. The city of Winnipeg, where I
am from, ranks second highest in the country for violent crimes by gangs, et cetera.
The Canadian Centre for Justice Statistics reports that the rate of firearm-related offences has increased in three of
the past four years, with an increase of 32 per cent since 2002 when they reached their highest point since data was
available in 1998. That is a substantial increase in a very short time.
The homicide rate has increased in two of the past three years and is up 7 per cent since 2003. The attempted murder
rate increased in each of the past two years and is up 24 per cent since 2004. The combined rate of aggravated assaults
and assaults with a weapon causing bodily harm has increased steadily and is up 57 per cent since 1983.
These crimes are committed by repeat offenders and gangs, and we want to get them off the street. You say that we
should give judges some leeway. The unfortunate thing is that we have allowed that.
In Mayerthorpe, Alberta, four RCMP officers were killed. Had this bill been in force at that time, the killer would
not have been on the street. We are trying to deal with repeat dangerous offenders. We must get them off the street.
Mr. Roberts: There is no question that violent crime is a very serious social problem. The statistics you cited are
quite alarming, and I do not doubt them. They come from the best statistical criminal justice agency in the world.
However, the question is what you can do about it. I recognize the problem and share your concern. I am only
questioning whether this particular weapon in the penal arsenal will be effective. There is general agreement in the
sentencing community that the incidence of crime will not be reduced by stiffer penalties. This goes back to my point
about offenders not reflecting.
You need to get the guns off the streets; you need reverse onus provisions; and you need to give the police more
powers in order to do something about it. However, I do not think that the average individual who engages in this
conduct seriously reflects about the probability of getting five rather than three years in prison.
With respect to judicial discretion, we need to have confidence in our judges in Canada. From my 20 years of
experience in Canada, I can say that judges do not impose lenient sentences. They impose what they believe to be
proportionate sentences, and they are governed by the appellate structure.
Senator Stratton: If that were the sense of the Canadian public, I do not think judges would have been given that
kind of leeway. However, public opinion is that that is not the case.
There is an article in Maclean's magazine this week about every parent's worst nightmare. It is about the violent
nature of crimes being committed across the country and the fact that repeat offenders are being released on bail as
soon as they are arrested. People have had enough, and they want something done.
I am not suggesting to you, sir, that this is the only thing that this government is doing. They are putting more police
on the ground and are doing things on the soft side, as one would say, to try to help these people. As we all know, that
is a social problem that dates back a long ways.
With deference, I disagree with your argument. I think we are now at a stage such that the situation will be out of
control if we do not do something.
Mr. Roberts: I agree that you do need to do something. I encourage to you think of many innovative ways of
responding. I can only say, as a sentencing expert with 25 years of experience, that, unfortunately, this mandatory
sentencing will not have the effects you wish it to have.
Senator Cowan: I believe you said that there is no correlation between the severity of sentences and the number of
repeat offences, and that if one is looking to commit an offence, it is the apprehension of perhaps being caught that
would deter someone rather than the severity of the sentence that might result from them having been caught. Is that
your reading of the available evidence?
Mr. Roberts: Yes, senator, it is.
Senator Cowan: In terms of mandatory minimums, as you are aware, in 1995 amendments were made to the
Criminal Code in Canada that attached minimum sentences to certain offences involving firearms. Are you aware of
any studies that have been conducted, either by the government or independent agencies, on the impact of those
amendments on crime rates or sentencing patterns?
Mr. Roberts: I am not. Previous testimony before this committee alluded to government reports that are on the
website of the Department of Justice that deal with the effect of mandatory penalties in other jurisdictions. They look
at certain cases in Canada, but they have not looked at that raft of firearms-related offences, the four-year minimums
that were introduced in 1995.
Senator Cowan: Do you think it would be reasonable for the government to conduct or commission such studies
before proceeding with further mandatory minimum sentence amendments?
Mr. Roberts: Absolutely. If the 1995 amendments, which created tough mandatory sentences with no judicial
discretion, had had an important suppressing effect on the crime rates of these offences, I would sit up and take notice
because that would be an important finding. You might then want to have more mandatory sentences. However, I
have not seen that evidence. If the government has it, I would like to see it.
Senator Cowan: You mentioned earlier in your testimony the possibility of attaching residual judicial discretion to a
mandatory minimum sentence regime. Could you explain to me exactly how that would work?
Mr. Roberts: The way it works is you create the mandatory sentence — which is, let us say, five years of
imprisonment — and you say that the court must impose this sentence. Then you add a phrase to the effect of ``unless
exceptional and compelling circumstances exist.'' If they do exist, the court can identify those circumstances, which will
be subject to review by the Court of Appeal. The Crown could appeal. That gives the court the residual discretion to
step outside the range.
The opposition to that is that judges will use it all the time, but that is not the evidence in other jurisdictions. The
``exceptional circumstance'' clause is used in a small number of cases, which, of course, is what they are supposed to do.
Senator Cowan: In what jurisdictions does that judicial override exist?
Mr. Roberts: It exists in South Africa, where they have the toughest mandatory sentences in the common law world.
It exists in England and Wales where it is attached to the mandatory sentence for a third domestic burglary, and so on.
It is a feature of pretty well every mandatory sentence.
Senator Cowan: Does it seem to work well in those jurisdictions, so far as you can tell?
Mr. Roberts: Yes. There has been no outcry that judges are using the ``exceptional circumstances'' inappropriately.
They use it in a small number of cases. The idea is that most cases will get the mandatory sentence, but there will
always be some exceptional grounds.
Senator Cowan: Because every case is different.
Mr. Roberts: Exactly.
Senator Cowan: Some opponents of this mandatory minimum regime are concerned that if you take away judicial
discretion you are really transferring that discretion to the prosecutors who might, in certain circumstances, adjust
their charges accordingly. Would you share that concern?
Mr. Roberts: I would. This is, of course, another objection to a mandatory sentence. It gives the prosecutor more
power. This has been experienced in Massachusetts where they brought in a gun law a few years back and a mandatory
sentence was tacked on. If you committed robbery with a firearm and it was effectively pled away — the practice was
known as swallowing the gun — prosecutors would accept a plea to robbery and then they would not mention the
Senator Cowan: I am interested in your comments on your studies and review in other jurisdictions with respect to
the impact of mandatory minimum sentences on minorities. An unusually large percentage of our prison population
comes from the Aboriginal community. I understand there was a similar experience in Australia, which has caused the
Australian authorities to move away from that regime or to at least back off some part of it. Do you have any
comment on that?
Mr. Roberts: It is an interesting point. The law is blind in this respect. Anyone who is convicted of this offence —
Black, White or indigenous or not — will be subject to the penalty. It does happen that there are some countries where
minorities are particularly likely to be engaged in the criminal behaviour giving rise to the sentence. If that is the case,
then a law of this nature will increase, disproportionately, the number of people in that category in the prison
Senator Merchant: By way of reference, I would like to use the U.S. as an example because they are our neighbours
to the south and we seem to be following them; sometimes we move in the same direction. An astounding 1 out of 140
Americans is in custody, yet their crime rate is astoundingly high. The crime rate seems to be increasing. It is 10 times
as high per capita than in many European countries.
I have to tell you about my biases first. I think the ``three strikes and you are out'' policy is a failure, and we are
about to adopt that with Bill C-2. I also believe in judicial discretion. That, apparently, is not a commonly held belief
by some people.
Could you give us examples of some of things the Europeans are doing that are working, and can you tell us how we
can avoid the mistakes that the Americans are making?
Mr. Roberts: Yes, senator. As you say, the American experience is quite informative in this respect. I would not
classify this bill as a ``three strikes'' bill. It obviously gives disproportionate weight to criminal history, but it is certainly
not as bad as the ``three strikes'' legislation where you can get life imprisonment or 40 years for a third felony.
However, the logic is the same.
You are right; the evidence is clear that in the United States there has been no reduction in the crime rate. A number
of states are pulling back from their mandatory sentencing laws, particularly with respect to drug offenders.
In Europe, the experience is somewhat different. There has never been as much enthusiasm for mandatory sentences
of custody in the European jurisdictions, particularly Finland, Sweden — the Scandinavian countries — where the
focus has been more on responding to these crimes at the stage of policing and communities. There has also been more
faith in judicial discretion. I think judges in common law countries such as Canada, the United States and England,
too, have been under a lot more criticism than in the European countries. That may be partly responsible.
The Chair: Senator Merchant spoke about incarceration rates, but what do we know about comparative crime rates?
Everyone knows the homicide rate is higher in the United States than elsewhere. In those countries in Europe that have
not been so focused on sending people to prison for long periods of time, are other crime rates lower?
Mr. Roberts: The crime rates are lower in some Western European jurisdictions, such as Finland and the
Scandinavian countries. They are certainly lower than in Canada. Canada is between the European and American
model. That may be another explanation why there has not been quite so much enthusiasm for taking away judicial
discretion in Western Europe.
The Chair: There is no evidence of which is the chicken and which is the egg, which is the cause and which is the
effect, or indeed if one is a cause and one is an effect.
Mr. Roberts: No, except this takes us back into the question of whether the severity of the sentencing process is an
effective deterrent or crime-control mechanism. I think it is not just me; most sentencing scholars would say you need a
tough sentencing system that imposes severe punishments on people convicted of the most serious crimes. However,
you do that to recognize the harm; you do not do that because you suffer from the delusion that doubling the sentence
will half the crime rate. It is not that simple, unfortunately.
Senator Di Nino: I come from the city of Toronto, so my viewpoint may be a little skewed in that way. I see this bill
as really a bill about the protection of Canadians.
We have received as evidence a letter from David Miller, Mayor of the City of Toronto. He writes: ``The people of
Toronto continue to be victimized by senseless acts of violence and handgun-related crime.'' He hopes this committee
will pass this legislation as soon as possible so that ``individuals and families are safe to partake in healthy and
productive lives.'' He also says that he supports the provision of Bill C-2 related to the mandatory minimum sentences
for firearms offences, as well as changes to the provisions concerning dangerous offenders, long-term offenders, et
Most of the crimes we are talking about in this bill are really perpetrated by a small number of hardened criminals,
people who are repeat and violent offenders. I would not necessarily argue with you, Mr. Roberts, but I would suggest
to you that it would be better for citizens if these criminals were kept in jail longer so that they cannot continue to
commit crimes after the experiences we have had with these individuals.
Would you not agree that the provisions of Bill C-2, apart from your comments on deterrence, incapacitate the
criminals and ensure that they are not free to live in our communities and to continue to commit crimes? Do you not
think that is a good reason to keep them in jail longer?
Mr. Roberts: I think people who commit these crimes should be in jail probably for a substantial period of time. All
I am saying is that I do not think a mandatory minimum sentence of this nature will reduce the rate of these crimes.
You say it is a very small group of hardened criminals, but actually a lot of people are involved in the buying and
selling of guns and ammunition. There are more offenders out there than you think.
I am not against the bill as a whole. I am talking very specifically about the mandatory minimum sentence
We have a problem in England and Wales now with guns and knives in cities that are the equivalent of Toronto.
One solution we have been looking into is allowing police to set up airport screening devices right on the street. You
can walk a young person through the device if he is suspected of carrying a gun or a weapon. I think approaches such
as that offer a lot more benefit in terms of crime control.
You may say it is a modest crime control benefit, but what is there to lose? You have to remember that what there is
to lose is the coherence of the sentencing process. You are taking away judicial discretion, and I think that is
In other countries, a sentencing commission would provide advice on this issue. It is incoherent to simply say we will
jack this sentence up and do that to this one and so on. You need a comprehensive proportionality-based approach.
That is all I am saying.
Senator Di Nino: I do not disagree with you that the criminal justice system will not be the only thing that will solve
the problems associated with criminals. This government, particularly in the short two-year period of time that it has
been around, has put forth and funded a number of different programs. We do not disagree that other things need to
be done, such as education and deterrence. However, in your response a moment ago to Senator Fraser, you said that
tougher sentences should be implemented in order to recognize the harm done. I agree that this is one of the reasons we
need to tell criminals that we will get serious about controlling them and their kind, and we will be punishing them for
longer periods of time if they continue to commit these crimes.
I believe I am quoting you correctly when you stated ``to recognize the harm done.''
Mr. Roberts: That is quite correct. All I am asking you is how much harm is done by selling ammunition for the
second time? That is a very serious offence. I am simply asking whether it is more serious than aggravated sexual
assault, manslaughter and other offences that are punished less severely.
Senator Di Nino: Maybe we should be looking at that as well.
In the city of Toronto this past weekend, three gun-related murders were committed. It has become an epidemic in
that city. We need to send a very strong message to the criminals who are committing these crimes that we will put
them away for longer periods of time in order to keep them off the streets. Will that solve all the problems? No, it will
not. However, we believe it is a deterrent if for no other reason than to recognize the harm they have done. This is
where I have an argument with your position.
Mr. Roberts: I understand. All I am saying is that there are two reasons. There is the seriousness reason we just
talked about, one that I think violates proportionality. The deterrence argument is an evidence-based one. As far as I
am concerned, the evidence is just not there.
As I say, the Department of Justice representative who said there is nothing conclusive does not give me a lot of
solace that this kind of legislation will reduce the crime rate. You want to make the message stronger to these
offenders, and that implies right now that they are thinking it is not so bad; but judges take these offences quite
seriously and impose significant terms of custody.
Senator Campbell: It is interesting that when we start talking statistics, they tend to be used with great selectivity. In
fact, the crime rate is down in Canada. Yes, we see little blips here and there, but it is down.
In Canada, we have mandatory sentencing for committing an offence with a handgun. However, as you say, like the
United States, they swallow the gun and cop out to a robbery without the gun. Would it not be simpler to give
direction through the justice system that you cannot cop out on that gun offence? Go with the gun offence, and then
anything above that is tacked on.
Mr. Roberts: Yes. That approach has been adopted with respect to other offences and issues. You could have a
prosecutorial guideline. There are prosecutorial guidelines with respect to conditional sentences of imprisonment in the
province of Ontario, and you could introduce something to this effect, which would minimize the undermining of the
mandatory sentence by conveying a message to prosecutors that they could not discuss this issue in plea bargaining.
Senator Campbell: Clearly, that is what is happening in Canada. As an ex-police officer, I know that ``let's make a
deal'' is not uncommon when you have an armed robbery.
Also, with regard to mandatory sentencing and dangerous offenders, these people will all get out of jail unless we
plan on keeping them in there for the rest of their lives, which as you say would be counterintuitive when one receives
an average of four years for manslaughter. Do you have any idea or any experience from your studies as to what
happens when these people get out of prison after their three strikes?
Mr. Roberts: I do not have any information in that regard.
Senator Campbell: We have quoted from Maclean's magazine, and of course we know that sensationalism sells.
However, it may be interesting for you to know that in 2004, 94 per cent of Canadians were satisfied with their safety,
up from 91 per cent in 1999.
Senator Oliver: What statistics are you reading from?
Senator Campbell: One would have to ask the relevance of this idea that there is suddenly this —
Senator Stratton: Try reading that.
Senator Campbell: That is exactly what I am reading, Senator Stratton. It is right there.
Senator Andreychuk: It is our testimony.
Senator Campbell: It is up to 94 per cent. One has to really ask: Will mandatory sentencing actually make a change
in our crime rates, or is it simply a feel-good measure for a small minority of Canadians?
Mr. Roberts: Is that question addressed to me?
Senator Campbell: Yes.
Mr. Roberts: I do not think it will have any impact. I testified to that effect. I do not think it will make Canadians
feel safer because Canadians do not really know a great deal about the sentencing process. There has been research on
Canadians' knowledge and the knowledge of others regarding their sentencing structures, and they generally find that
people have no idea whether the offence carries a minimum penalty and, if so, what that minimum penalty is. These
provisions may make some legislators feel better, but I do not think they will affect the crime rate and I do not think
they will make Canadians feel safer.
I do agree with you that Canadians have respect for their system. Obviously, there are pockets of big problems in
Canada, but the nation is not, if you look at the statistics, gripped by a blizzard of crime fear.
Senator Campbell: Senator Di Nino read from a statement of Mayor Miller. Mayor Miller is an advocate of
outlawing handguns. Do you have any knowledge of jurisdictions where handguns are outlawed and the effect on
Mr. Roberts: I am not a gun restriction, gun control expert with respect to the amount of weapons circulating in
society. I could not address that question.
Senator Andreychuk: It was interesting to note that the Canadian justice officials came and testified before us, and I
agree with your assessment that they are excellent in the work they do and should be supported even further.
They did a survey some years back and said that people were satisfied with the system. However, since then, and
given the increase in violent crime, they do not have statistics of citizen satisfaction in that regard. Therefore, we should
remember the testimony and the centre's interpretation of their statistics as they presented them at our last committee
I want to deal with the matter of proportionality. You are absolutely right that our Criminal Code as a whole should
look at the issue of proportionality, but it is not just the proportionality of these proposed new sections of the Criminal
Code that we are concerned with. When we look at the intent of the proposed sections and how sentencing has taken
hold, in our opinion we find that we sometimes incarcerate people on more minimal issues, and as time goes on, they
receive a higher and higher sentence as opposed to what we thought would be appropriate for a serious crime. In other
words, individuals charged with break and enter or theft sometimes receive longer sentences than someone charged
with assaulting a spouse. Therefore, we struggle with the issue of proportionality as it relates to criminality. It is not a
new issue in these proposed sections. Would you agree with that assessment?
Mr. Roberts: Absolutely, it is not a new issue. We have seen these anomalies in sentencing statistics in Canada since I
have been in the business, which would be 1982. It has always been a problem. One of the problems is we do not have a
central commission that revises, revisits and studies sentencing statistics so that Parliament can say, ``We are creating a
new offence, so what should the level of sentence be?'' It is not a new problem.
Senator Andreychuk: Setting aside South Africa, am I correct from my recollections that there is something similar
to a mandatory minimum in the U.K. for gun crimes?
Mr. Roberts: There are a small number of mandatory sentences in the United Kingdom. The closest to the
arrangements we are talking about here is a three-strikes penalty for burglary, domestic break and enter. On the third
occasion, it is a three-year sentence. Those are the equivalents in this jurisdiction.
Senator Andreychuk: Would it be fair to say that there was a response from their Parliament as to what they
perceived from their citizens to be the issue, and burglary was deemed to be sufficiently serious, warranting a
Mr. Roberts: That is correct. It was not so much concern from their constituents, but evidence that burglary had
been increasing. There was concern about the seriousness of the offence.
As I mentioned before, the mandatory sentence that came in a couple of years ago was accompanied by this
provision allowing for limited judicial discretion.
Senator Andreychuk: You were advocating that perhaps there should be more judicial discretion and some
capability, no matter what the minimum is, whereby a judge would have some judicial discretion. That may be one way
of looking at it. However, if society deems that there should be a threshold beyond which an individual receives the
minimum mandatory sentence, there is still prosecutorial police discretion in those cases where, on the face of it, they
believe a crime has been committed but they believe it does not warrant the charge or warrant going to court.
Mr. Roberts: Yes, but this is a slippery slope. Another way of saying that is to say, ``We are going to create this really
tough sentence, but do not worry about it because prosecutors will exercise their discretion wisely and you will not
have inappropriate cases going to the court for conviction.'' You need to ask, ``What is the appropriate sentence for an
offender convicted of this offence, and how much judicial discretion should there be around that decision?''
I am not arguing, by the way, for more judicial discretion. Judges have quite a lot of it at the present time. I just do
not want to take it away in this rather ad hoc manner.
Senator Andreychuk: I was responding to Senator Cowan who thought you could do it by guidelines for prosecutors.
My point would be that if we are to use mandatory minimums, we should know that they are mandatory minimums
and not leave it to the discretion of prosecutors.
Mr. Roberts: Absolutely.
Senator Andreychuk: We are not taking away judicial discretion completely in these sections, but we are reducing
judicial discretion. Would that be a fair assessment?
Mr. Roberts: That would be a fair assessment. You are reducing it in the sense that you are permitting a court to
exercise discretion, but only in one direction. For example, with respect to the five-year minimum for the second or
subsequent offence, a court can go up but it cannot go down. The only way proportionality can be maintained is by
doing up. You cannot maintain proportionality that way; it is asymmetrical.
Senator De Bané: Professor Roberts, the question of sentencing is part of your expertise, and various scholars have
specialized in studying the question of sentencing in depth. What is their general opinion about mandatory sentencing?
Mr. Roberts: Their general opinion is that it is a parliamentary legislative sledgehammer in the sense that it goes into
the sentencing process and smashes away judicial discretion. Sentencing scholars are fairly consistent on this point.
They are not consistent on a lot, but on this one they are. They say that the deterrent justification just is not there. The
evidence is not there that you would deter crime effectively by having a mandatory minimum sentence.
There may be an argument to be made, and many would make it, that if a crime is so serious — and I gave the
example of murder — then you need a mandatory sentence of custody because it is inconceivable that the community
would accept a non-custodial sanction for someone convicted of murder. However, the deterrence argument, which is
of course based on research, has been considered quite weak for quite a long time.
Senator De Bané: Thank you very much, professor, for giving me this broad summary of the general opinion of
experts on sentencing.
Tell me now about the general opinion of the judiciary in regard to mandatory sentencing. In theory, my guess is
that they like it because it removes a lot of responsibility from their shoulders. Then they do not have to think, over
days and nights, what they should do in a particular case if it has been set out in the law. You just close your eyes and
you give him so much.
Mr. Roberts: As you might guess or imagine, judges are quite opposed to these penalties because they take a judicial
oath to do justice. In their view, the penalty takes away their discretion and ability to do that. I am not just saying that;
there is research on that subject.
If you look at the one-year sentence that was introduced way back in the 1980s, which the Canadian Sentencing
Commission studied, a one-year mandatory minimum sentence went all the way up from 1 to 14. Judges should use the
range, but because they did not like it, they all came in at the first level.
If you look at judicial surveys in Canada and other countries, judges, no more than anyone else, do not like having
their discretion taken away, particularly when they want to try to do justice.
I also think that they resent what they perceive to be a certain degree of lack of faith in the judiciary — ``the judges
are not doing their job properly, so we will do it for them'' — and I think they resent that.
Senator De Bané: What makes me personally uncomfortable is that it is well known that each category of crime is
committed by a special category of people. In the case of manufacturing dangerous drugs, only large international drug
companies can do that. With respect to issuing a misleading IPO on the stock market, not many people can do that. As
for manufacturing unsafe cars, there are not that many people manufacturing cars in the world. However, violent
crimes, given everything I have read, are committed by the 2 per cent poorest people in society.
Senator Oliver: Not necessarily.
Senator De Bané: The people who overwhelmingly commit violent crimes are the 2 per cent poorest, and we are
concentrating here on putting them in prison. However, in the case of more serious crimes there is no mandatory
sentencing, such as the case of a guy who puts an unsafe drug on the market or hides negative clinical studies out of an
obsession to make a profit and thousands of people are subsequently handicapped for life. The thing that bothers me is
that the 2 per cent poorest people who commit most violent crimes are the ones we are targeting. What do you think?
Am I off base in saying that?
Mr. Roberts: Well, no. I think it might be more than 2 per cent. Domestic violence is quite a widespread offence. It is
not just restricted to 2 per cent. However, I would be perfectly in agreement with your more general point, which is you
need to consider the relative seriousness of different offences. There may be some white collar crimes of a particularly
serious nature that should attract a much more punitive response than they do now and possibly even more punitive
than some of those other offences.
Senator Oliver: Professor Roberts, thank you for sharing with us your experience in this area. A lot of the
information you have given us has been helpful and quite informative.
I want to deal with the question of proportionality. When you were giving your opening remarks, you referred to the
fact that it had been raised by Senator Joyal in one of our meetings, and you went on to give your quick definition of
what you meant by ``proportionality.'' After a couple of more comments, you then concluded ``that the government
has not made out its case that these offences warrant the serious penalty.''
Implicit in that conclusion that you reached was the fact that you had no evidence that the government took
anything else into account and, indeed, in answer to another senator you said that it was ad hoc. You did not like this
ad hoc approach.
I want you to know that 14 days ago the Minister of Justice in Canada appeared before this committee, and I want
to read you two sentences that he said:
We do not just write the Criminal Code all at once. We have taken it and modified it. Every time we do, we look
to other provisions of the Criminal Code to see if that activity fits in proportionately with other activities.
He is using the word ``proportionately'' in his description and before this committee, and the evidence before this
committee is contrary to the conclusions you reached. The evidence is that the government did look at other offences
and other parts of the Criminal Code.
Later on, the minister also said:
We study each piece of legislation that we have and try to ensure that it will fit into the existing Criminal Code. . .
. We do that by our analysis of every single piece of legislation we bring before Parliament, and we will continue
to do that because that is the way it has always been done and it has worked out well.
If your premise was wrong, now that you know that the government did look at these other things, your conclusion
on proportionality is probably wrong as well, if we wanted to use the syllogism.
Mr. Roberts: First of all, the definition of ``proportionality'' I gave you was not my own. It was yours, senator, or at
least that of the Parliament of Canada as codified in 1996.
I fully agree that Mr. Nicholson did say that he had considered it in his department, and that is great; that is the way
it should be done. You should say, ``How much harm is involved in this particular offence?'' Then we can establish how
much time it should result in. However, in his response to Senator Joyal's question, ``Could you give us the study that
you used to establish the scale that you are proposing in this bill in relation to other offences in the code?'' Mr.
Nicholson replied, ``It is not a study, senator.''
All I am saying to you, sir, is that if they have looked at all the offences and decided that for this particular offence
the seriousness of this conduct warrants five years on a second conviction, then that is great. However, I simply ask
you whether you think it is appropriate and whether it is proportionate when offences such as manslaughter are
attracting lower sentences? That is what I mean by the absence of a comprehensive proportionality-based analysis.
Of course, senator, that is what judges do; do they not? There is an offender to be sentenced. He has been convicted
of this possession of ammunition charge, and the court is thinking, ``How much more or less serious is this than other
offences?'' Courts are making those judgments every day. All I am saying is I did not see any evidence from the
Department of Justice that they had undertaken and published a comprehensive analysis of this nature. If they did, I
Senator Oliver: They do not have to publish an analysis to be able to make a change in a statute.
Mr. Roberts: I agree.
Senator Oliver: One of the things that most departments do is they use the judgment of people who have had years
and years of experience in this area. We do not know it because it is not before the committee, but I presume they had a
whole series of meetings with various senior experts in the Department of Justice over many months comparing many
things. However, they do not have to send it out to a professor to have a lot of research done and publish findings just
to make it right.
The fact is that the minister gave evidence before this committee that he did look at proportionality. All I am doing
is raising the logic of the issue that if you say there was none and the minister says there was some that the basic
premise of your argument probably has some difficulty. That is all I am saying.
Mr. Roberts: Thank you. I just repeat myself.
Senator Chaput: I would like to say a few words about this bill. It seems to me that fighting against crime or fighting
to reduce crime is everyone's responsibility regardless of the party we represent. No one can disagree. We all want our
country and our regions to be safe.
As I prepared for this committee, I found myself asking one question on several occasions: to what extent do
Canadians feel safe?
What has become clear at various times is that the presence of police officers on our streets, in our cities and in our
regions in itself makes Canadians feel safe.
Before us now we have Bill C-2 that proposes punitive measures to reduce crime. I have no problem with violent
crime being punished as a deterrent; my difficulty comes in determining the most effective penalties. What is the most
effective way to punish?
My question stems from the statistics presented previously by my colleagues. They told us that, among young
people, the use of guns in violent crime has increased in recent years.
What do you think would be the best way to solve this problem?
Mr. Roberts: I have one quick correction. I am not fighting this bill; I am just raising questions about the propriety
of a few provisions in the bill.
With respect to your question, my point is simply that punitive repeat-offender provisions will not deter those young
people. If you want to stop those young people, you have to get the guns; and you get the guns by restricting access,
perhaps by giving the police greater search and seizure powers and a greater ability to go into people's homes, things of
If you are asking me whether a five-year sentence — which is significantly harsher than for many very serious crimes
of violence — is an appropriate sentence and will deter people from selling ammunition, I have to say, in all honesty, I
do not think so. I think the evidence supports me.
Senator Cowan: I want to go back to a point that Senator Stratton made in his initial line of questioning when he
suggested that the purpose of the bill was to get serious repeat offenders off the streets so that they would be unable to
reoffend. It is obvious that so long as they are in jail, they will not be committing offences, at least not offences against
the general public. They may be doing all kinds of bad things in the prison itself, but outside, they are not a threat to
the general public. That is the so-called incapacitation argument — as long as they are in jail, the public is protected.
The witnesses who have testified before this committee and also before the House of Commons committee said that
the longer a person stays in jail, the lower the chances of successfully reintegrating into society when they get out, and
they are more likely to reoffend when they get out. You cannot keep everyone in jail forever; sooner or later they have
to be released.
I would like your views on what the expert studies have shown as to the likelihood of reoffending the longer people
Mr. Roberts: The longer the period of detention, the longer the period that the offender is out of the community,
and obviously you will prevent some crimes. Of course, the offender will be released on parole, so you have to take that
into consideration. Incapacitation, as you refer to it, is a particularly inefficient way of preventing crime. You prevent a
small amount of crime, and it costs you a lot of money in terms of prison spaces.
With respect to the effect of imprisonment, the literature there is fairly clear. Unfortunately, although Canadian
prisons and Canadian correctional programs are among the best in the world, people do not often come out of prison
better than they went in. The recidivism rates, or the reoffending rates, are not significantly lower. I believe it may even
have been the minister who said that after five years in prison, you will realize the seriousness of your conduct and you
will not do it again. However, unfortunately, it is not that simple. People learn other things in prison. They come out
embittered or angry. The point of the prison term should be to rehabilitate and reintegrate so they do not come back
and reoffend. Unfortunately, the reality is otherwise.
Senator Cowan: As Senator Chaput said a moment ago, all of us, regardless of our political persuasion in this house
and the House of Commons, will want to do what we can to make society safer. We are discussing what the most
effective way is to make our society safer.
As I take your testimony, you are not arguing about the objective of making society safer and cutting crime rates;
you are just disputing, at least with respect to this mandatory minimum, that it is as effective as some would pretend
that it is. You described it as a legislative sledgehammer.
To conclude on this point, I wanted to quote to you the evidence that RCMP Superintendent Woods gave in
relation to the predecessor bill in the other place in November of 2006. He said that it is progressively more serious
sentencing, but each time the cycle of sentencing ends, they will come out and re-victimize someone before they hit the
next cycle, the next sentence. Yes, there will be a positive impact on crime because of the incapacitation, but if you are
not dealing with the root causes of that behaviour, you will have that person cycle through and continue to victimize
the community when they are out of jail. Would you agree with that sentiment?
Mr. Roberts: Yes, I would. You have to get these people rehabilitated and you have to get the guns away from them.
The question is how to effectively achieve that.
No, I do not disagree with the objectives of the bill. I do not disagree with many of the provisions of the bill. I am
just speaking about this one specific reform, and I am trying to protect, if you will, the integrity of the sentencing
process and the importance of judicial discretion.
Senator Di Nino: To pick up on Senator Cowan's point, I am not sure that you have any knowledge of this, but
could you comment on the other side of the equation? When people are in prison, are we doing as good a job at
training them, at treating them, in effect? Is this an area where the problems exist and we have possibly not balanced
them with the harsher punishment that I believe is necessary?
Mr. Roberts: I am not an expert in correctional programs, but I can tell you that the training programs in Canada's
correctional system are recognized around the world. The reality is that trying to get people off a criminogenic lifestyle
is an intractable problem. If you have them in prison for six, eight or nine months, there is a limit to what you can do
with even the best programs in the world. I think Canada does well, but whether they could do better, I am not an
expert in that area.
Senator Di Nino: That leads me to believe that maybe longer sentences are at least one way to keep these folks from
I wanted to clarify one point. You have spoken extensively about judicial discretion. Canada has had minimum
sentences for a variety of different offences and as a matter of fact has increased these opportunities for minimum
sentences over the past 20 years; therefore, the impact on judicial discretion is not necessarily as severe as you have
suggested. Mandatory minimum sentences have been in the books of our criminal laws and have impacted judicial
discretion for some 20-plus years. You have done some study in that regard, correct?
Mr. Roberts: That is correct. Mandatory sentences have been around for quite a long time, and we must recognize
that Parliament is sovereign in this matter. The question is: What can Parliament do to assist the sentencing process? Is
this an appropriate way of structuring — or I say removing — judicial discretion, even if it is only for a limited number
Senator Di Nino: Would you agree, though, that this bill — and we have to talk about this bill — increases the
mandatory sentences in some cases or introduces mandatory sentences in cases where heinous crimes have had a
negative impact on the citizens of this country?
Mr. Roberts: These are not trivial crimes; these are most serious crimes. I am simply asking whether five years for
the second case, namely that of selling ammunition, is justifiable when you have people committing much more serious
crimes and not attracting that level of penalty.
Senator Di Nino: That is not what Bill C-2 deals with. However, I guess that is a valid comment.
Senator Andreychuk: I want to follow up, Professor Roberts, with the point you were making about studies. I do not
for a minute think that we should only make our judgments in Parliament based on studies. I think that a host of issues
and inputs are necessary to make good legislation, but I do think studies are important.
I believe the first mandatory minimum sentence was put in place in 1977. A fundamental one was made in 1995,
when we attached a four-year mandatory minimum sentence to serious offences committed with firearms, such as
attempted murder, sexual assault, kidnapping and robbery. We are now adding to that list.
Are you aware of any studies that were done pre-1995 that induced the Parliament of the day to add minimum
sentences around firearms? Do you know of any studies that were undertaken after 1995 upon which the minister
should have relied?
In other words, why are we saying today that these provisions in the bill should not be passed because we do not
have a study, when in fact we have been passing legislation through Parliament without study? The point of academic
study is important, but it is not a precondition, is it?
Mr. Roberts: No. Empirical research on the functioning of the sentencing process is one element of your
I do not know what was done in 1993 and 1994; that is a long time ago. I do not know if there were studies
commissioned about the effectiveness or likely impact of those mandatory sentences. I have not seen any studies that
have demonstrated, first, that the 1995 mandatory sentences had a deterrent effect; and, second, if they have, that is
great, and now they are being increased again so that they will probably have more of a deterrent effect. All I am
saying is that there are many reasons for having mandatory sentences. However, if you want to make the claim on a
deterrence basis, you have to have the goods. I just have not seen the goods. I am not saying they are not there in the
department somewhere, but I have not seen them.
Senator Andreychuk: You would advocate that we would commence study as a valuable tool for the future.
Mr. Roberts: I would say so. In the event that you create these mandatory sentences or these new increased
sentences, it would be nice for Parliament to say, ``Five years down the road, we will revisit those mandatory
minimums we created to see whether or not we did any good.''
The Chair: Before we liberate you, Professor Roberts, I have a question of my own. I was struck by your statement
that the programs made available in Canada's correctional services system, such as vocational training to rehabilitate
inmates, are highly regarded around the world. We heard testimony from the correctional investigator that the budget
for those programs has actually dropped by 26 per cent in the past six years. I am not quite clear, and I would like you
to restate for my benefit exactly what you think is the link between programs of that nature and increases or decreases
in the recidivism rates.
Mr. Roberts: In England, recidivism rates are significantly higher than in Canada. England and Wales do not have
particularly good prison programs. The programs may have been cut in the budget, but the programs Canada has
developed, such as CSC, have an international reputation.
What those programs attempt to do and what any correctional program attempts to do is to correct the cause of
offending. Usually, it is some form of addiction — drugs, alcohol or criminogenic lifestyle, and there may be
psychological components. Those core causes of crime can be addressed in a correctional setting, but you need to have
the treatment programs there and you need qualified personnel. I am just talking about the general reputation of the
programs in Canada. I am not a correctional expert.
The Chair: Thank you very much, indeed. This has been a most interesting session, and we are grateful to you. I am
sure it is not easy to be faced with a whole array of different people posing questions across the Atlantic like this.
Senator Di Nino: You did a great job.
Mr. Roberts: I would like to say that I miss Canada; it is a great country. You are doing a wonderful job. Good luck.
The Chair: Thank you very much.
Honourable senators, our next witnesses are Nichole Downer, Program Consultant with the Canadian AIDS
Society; Robert Kissner, PhD, from the Canadian Association of Social Workers; and Dr. John Lamont, President of
the Board of Directors of the Canadian Federation for Sexual Health.
We are glad that you are able to join us this morning, and we look forward to hearing from you.
Nichole Downer, Programs Consultant, Canadian AIDS Society: Thank you for inviting us to share our thoughts
with you this morning.
The Canadian AIDS Society is a national coalition of 125 community-based AIDS service organizations from
across Canada. We are dedicated to strengthening the response to HIV/AIDS across all sectors of society and to
enriching the lives of people and communities living with HIV and AIDS. As an organization dedicated to decreasing
HIV/AIDS infection rates, we are concerned about the pending legislation that would increase the age of consent for
sexual activity from 14 to 16 years of age.
The Canadian AIDS Society does not support increasing the age of consent for sexual activity from 14 to 16.
Furthermore, the proposed amendments do not address an existing law prohibiting anal intercourse for individuals
under the age of 18. The Canadian AIDS Society believes the law should not discriminate by type of sexual activity.
First, there are already protections in place. The Criminal Code of Canada already protects people under the age of
18 from sexual relationships that happen under circumstances of exploitation, pornography, prostitution or in
relationships of trust, authority and dependency.
Second, the Canadian AIDS Society is concerned that increasing the age of consent could result in youth being more
secretive about their sexual practices and not seeking out the information they need. This will place youth at increased
risk of contracting HIV and other sexually transmitted infections. Almost one quarter of students in Grade 9 feel
embarrassed about seeing a physician or nurse if they suspect they may have an STI.
Raising the age of consent could have the negative impact of further decreasing youth accessing information from
health providers if they are under the age of 16. This is problematic, as research in Canada has shown that the average
age of first sexual intercourse is 14.1 for boys and 14.5 for girls. A study conducted in Britain showed that youth are
unlikely to seek information about contraception and sex if they are under the age of consent because of worries about
the law and confidentiality. The study showed that youth under the legal age of consent in Britain were six times more
likely than those over the legal age of consent to say ``fear of being too young'' as the reason they did not seek out
sexual health information. Regardless of the age of consent, youth will continue to have sex and we need to make sure
they have the information they need.
As we know the average age of first sexual intercourse is under 16 in Canada, raising the age of consent could result
in many youth engaging in their first sexual intercourse while fearing access to the information they need. Not enough
research has been done in this area to alleviate the fears that raising the age of consent could have detrimental effects
on the sexual health practices of youth. Therefore, it would be irresponsible to increase the age of consent without
knowing the full effect of this action. The Canadian AIDS Society supports more research being done in this area.
Third, the close-in-age exemption is not a solution. The government has used the close-in-age exemption as a
solution to fears that the bill will criminalize youth sexual behaviour. We do not believe this is an adequate solution.
While we understand the rationale behind the creation of the close-in-age exemption and that this exemption would
be increased to five years, the bill places unnecessary restrictions on youth while not addressing the reality of sexual
Given that all exploitative activity is currently illegal involving people under 18, this law makes the situation for
youth unnecessarily complex. Most youth, and even adults, do not have the legal expertise to know about the criteria
in the exemption or to be able to determine if their relationship meets them. It is very likely that this exception will be
misunderstood or forgotten and the age of consent will generally be understood as 16 years of age. Many young people
would assume their relationships are illegal and not seek the information and help they need.
Using age as a factor to determine sexual exploitation does not address the reality of sexual abuse. In cases of sexual
coercion, a person is no less abused if the perpetrator falls within a five-year peer group.
This legislation is focusing restrictions on the wrong group of people. Criminalizing the sexual behaviour of youth
will do nothing to stop exploitative activity. More resources need to be devoted to pursuing cases involving sexual
exploitation and abuse.
Fourth, the focus should be on comprehensive HIV/AIDS and sexual health education. Figures suggest that 67 per
cent of males and 58 per cent of females in Grade 11 reported that school was their main source of information about
HIV and AIDS. However, 27 per cent of Grade 7 students and 14 per cent of Grade 9 and Grade 11 students had not
received any instruction on HIV/AIDS education over the past two years.
The Canadian AIDS Society is concerned that if the age of consent is raised from 14 to 16, the prevention education
in schools will not be available for youth under the age of 16, decreasing further the amount of information provided to
youth. Research evidence has shown that in the long-term, prevention messages are more effective when they are
delivered early and are effective at reducing risky sexual behaviour.
We also know that there were 212,000 high school dropouts in Canada in 2004-05 and that the legal minimum
school-leaving age is 16 in most provinces in Canada. Therefore, not delivering sexual health education in schools
before the age of 16 would mean that many youth would not receive critical prevention messages.
The Canadian AIDS Society believes that the Canadian government should be focusing their efforts on promoting
consistent, comprehensive HIV/AIDS and sexual health education across Canada. The best way to protect and
support youth is to ensure that education and services are available to inform them about their rights and options, and
the risks and benefits of engaging in sexual activity. Educating youth to make informed choices that are right for them
is better addressed through parental guidance and comprehensive sexual health education than by using the Criminal
Last, the age of consent should be universal. According to the Criminal Code, the age of consent for anal sex is 18,
while the age of consent for vaginal intercourse is currently 14. Section 159 of Canada's Criminal Code states that
people who engage in anal intercourse are guilty either of an indictable offence and risk a prison term of up to 10 years,
or are guilty of a summary offence. Both the Ontario and Quebec Courts of Appeal have already found this distinction
to be unconstitutional as it discriminates based on age and sexual orientation.
The Ontario Court of Appeal recognized the potential for harm when the age of consent is higher in striking down
the age of consent at 18 for anal intercourse. As a portion of this response read:
Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a
provision of criminalizing consensual anal intercourse for adolescents is that the health education they should be
receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young
people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code
provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health
risks associated with that behaviour, contribute to the harm it seeks to reduce.
The review of this bill is an opportunity to end the discrimination of section 159 of the Criminal Code. Various
sections of the Criminal Code are listed as being amended within this bill. Therefore, this bill should include a
definition of sexual activity that encompasses all activities including anal sex, ensuring that the age of consent for all
sexual activity is the same.
The Canadian AIDS Society hopes that you will reconsider increasing the age of consent based on the issues raised
above. The solution to protecting youth from sexual exploitation is not found by placing restrictions on youth. This bill
has the potential to affect the health and well-being of youth, and it is irresponsible to enact this bill without solid
evidence to the contrary.
Our recommendations are as follows: that the age of consent for sex remain at 14 years of age; that resources are
devoted to pursuing cases of sexual exploitation and abuse as well as resources for parents and youth to help them
make healthy choices; that there is more research into the impact the age of consent has on providing sexual health
education and youth confidence in accessing health professionals; and that section 159 of the Criminal Code is
removed and the law regarding anal sex be made consistent with the law on vaginal intercourse.
Should this bill be passed, plain-language information on the new law and what it means need to be communicated
to youth, particularly around the close-in-age exemption.
Robert Kissner, PhD, CASW Board of Directors, Canadian Association of Social Workers: The Canadian
Association of Social Workers, or CASW, is a federation of provincial and territorial associations throughout the
country. It is the national voice on behalf of its 16,000 members and, to some degree, their many thousands of clients.
CASW would like to present some considerations and proposals with respect to the clauses in the bill related to the
age of consent. As an organization, we obviously favour any measures that increase the protection of children, but we
must give the legislation a very mixed review.
The main point of our presentation is that raising the age of consent from 14 to 16 — at which a person can consent
to non-exploitive sexual activity — is likely to have uneven effects and will also likely have unintended consequences.
Rather than protecting those whom it is intended to protect, we believe that the bill, if enacted into law, would need
additional measures to protect children who will experience increased risk as a result of this legislation.
To illustrate, central to the legislation is the belief that all predators are, to some degree, uni-dimensional and that
their interests and tactics are somewhat similar. However, there is research to suggest that all predators are not alike
and that there is a difference between people who have a sexual interest in children who are under the age of 13,
pedophiles, and people who have a sexual interest in children who are going through sexual maturity, hebephiles. This
interest is more formally distinguished between these two age groups of under 13 and 13 to 17.
Presumably, the interests of children who were hunted by pedophiles were met by the old legislation and the
interests of those hunted by hebephiles is to be met under the new legislation.
Given that hebephiles are typically interested in children 13 to 17 versus those who are under 14, it is reasonable to
assume that efforts formerly aimed at protecting children less than 14 years old will be now concentrated on youth who
are less than 16 years old. The problem, in simple terms, is that we are increasing risk for children who are 16 or 17
years old in our culture.
The problem also is one of perception and consensus. The old legislation clearly defines children less than 14 years
old as people who are not yet prepared for sexual decisions and who, without question, would be exploited in any
sexual relationship. Very few people would take issue with this proposition. Indeed, there is wide public consensus and
universal social denunciation of adults who are involved with young children. Because this proposition does enjoy such
clear consensus, legal enforcement can be and is currently relatively straightforward.
The new legislation expands the same proposition to youth who are less than 16 years of age. In other words, youth
14 to 16 years of age are also deemed to be unprepared for sexual decisions. Unfortunately, this proposition does not
enjoy the same consensus as the other and there is considerable ambivalence.
Therefore, because of blurred consensus related to this age group, legal enforcement can be compromised and we
lose our clarity of focus. For example, research in the United Kingdom shows that adult-adolescent relationships are
infrequently prosecuted and sometimes viewed with ambivalence by the media. Where we blend legislation concerned
with adults involved with children versus adults involved with adolescents, we begin to lose clear focus and things
The great danger, therefore, in defining those young people less than 16 years of age as identical to those less than 14
years of age is that we potentially also undermine protection for children under the age of 13 because we lose that
clarity of focus and we lose social denunciation. Effectively, we create greater risk for children under 13 years of age
and we also create greater risk for children that are 16 and 17 years of age.
The bill also seems to assume that the modus operandi of adults sexually involved with children is the same as older
adolescents. However, there is research to indicate that predators who target young teenagers are more likely to involve
an accomplice in their crime. We are not sure necessarily that the role of an accomplice is addressed in the legislation.
On a broader policy level, we share concerns that I articulate in my written submission to you and that my
colleagues will speak about. We essentially agree with that.
As opposed to raising the age of consent beyond its current level, our preference would have been to leave the age of
consent within judicial discretion for all people below the age of 18 and above the age of 14. This would allow
protection for all youth, and the judge would have the power to set aside consent in the presence of evidence that a
particular relationship is exploitive. We are prepared to trust in the wisdom of our judiciary.
We also believe, effectively, that we need to begin to deal with the causes of sexual exploitation. Therefore, we need
to begin to create innovative programs in which pedophiles and hebephiles can come forward with confidential
treatment. If you have this issue, where in this country would you go for help? Yet, we want people to quit their
At the same time, we know that a whole number of these people experienced abuse as children. Some of the statistics
refer to 40 per cent. Where are the programs for these people in all of our provinces?
For kids, some of the best variables appear to be a couple of things, the first being increased social capital. There is
new research that shows if you are involved in your community — families, sports teams, these kinds of things — you
are so involved with other kids that you are effectively protected by that community.
Interestingly, there are some male relationships where family has a greater influence. With females, oddly enough,
other social relationships appear to be more effective.
Another thing that matters for us is the whole idea of a child's rights. Kids under the age of 19 in our culture have
the right to effective protection and to knowledge.
As social workers, we realize that the kids targeted in this country are many of the kids who are part of our child
welfare system. One of the most important variables in our country right now is whether kids graduate from school.
We talked earlier about weapons. Whether one is likely to be involved in that type of activity is linked to whether or
not one graduated from school.
Where is our lowest school completion rate in this country? From the governments that provide education to our
children. With respect to the current rate of school completion in Canada, roughly one child in five still does not
In my province, if you are served by our government, your odds of completing school are 29 per cent. Three out of
ten children served by the provincial Government of British Columbia graduate.
At the same time, we need to move toward reducing poverty. We know if we increase social welfare rates that we
increase educational engagement. One of the sole reasons and one of the most important variables relating to
prostitution is whether or not people are in poverty. All of us effectively need to work to reduce poverty.
We endorse many of the recommendations outlined in Campaign 2000.
Dr. John Lamont, President of the Board of Directors, Canadian Federation for Sexual Health: I am President of the
Board of the Canadian Federation for Sexual Health. I am also a Professor Emeritus of Obstetrics and Gynecology at
McMaster University in Hamilton, Ontario, and I work in women's health and sexual medicine.
With me is Linda Capperauld, Executive Director of the Canadian Federation for Sexual Health. We are here today
specifically to speak to Bill C-2.
The Canadian Federation for Sexual Health is a national, member-driven, charitable organization focusing
exclusively on sexual and reproductive health and rights. We have been around for over 40 years, working in Canada
and internationally. Our national network of 28 affiliate members across Canada has significant experience and success
working with youth and parents in both education and health care delivery.
Our federation includes the Canadian Youth for Choice, a rapidly growing national network of young people who
are educating and advocating for the rights of youth regarding sexual health.
We support the intent of Bill C-2, which is to protect young people from sexual exploitation.
Law enforcement officials believe that raising the age of consent to 16 years will serve as a deterrent to adults who
would otherwise exploit youth sexually and that prosecution of offenders, once a crime has taken place, will be easier.
However, there is no evidence either in Canada or internationally that increasing the legal age of consent will, on its
own, actually work in preventing exploitation of youth, nor that it will provide any other benefit sufficient to justify the
intrusion into personal privacy and consensual activity of youth.
Bill C-2, as it currently stands, focuses only on the law enforcement aspect of protection. Law enforcement, in and
of itself, does not protect youth; it only allows for prosecution once youth have already been exploited.
If we are serious about protecting youth, then we must make sure that they have the skills, education and health
services needed for them to make informed choices, to negotiate their sexual relationships and to prevent abuses of
power. Moreover, we must think about the possible unintended consequences of this bill.
We have three major concerns and three recommendations. First, young people do not seek out the information and
sexual health services they need if they fear a lack of confidentiality. We know this from long experience and from
research, and I can speak to this personally from many years as a practising physician.
We also know from experience that when a young person is able to build a trusting relationship with a health care
provider or other professional, it helps to protect that young person from exploitation because it creates a positive
environment for counselling on decision-making, choice and empowerment.
The perception of reality that a young person or his or her partner would be reported to authorities and prosecuted
for consensual sexual activity will result in sexually active youth not seeking or getting the health services they need.
The consequences among youth can be tragic: unintended pregnancies, sexually transmitted infections and HIV/AIDS,
to name a few, with potentially devastating consequences such as infertility, cancer or even death.
Second, the increased age of consent could be used as a justification for denying young people the sexual health
education and services they need. Unfortunately, we know that once a law is passed, there is often little control over
how it is used or interpreted.
Educators and health professionals may be reluctant to enter into conversations about sexuality with young people
under the proposed new age of consent due to uncertainty about their legal obligations, their own personal viewpoints
or parental or other pressures. This has happened in other jurisdictions, such as the United Kingdom.
Both our experience and best practice research show that sexual health education which begins early, is age
appropriate and includes skills building as well as factual information is effective in helping young people to negotiate
relationships, to delay first sexual activity and to practise safer sex when they become sexually active. This education is
essential for youth to learn ways in which to protect themselves from potentially exploitive situations. As surprising as
it may sound, even today, sexual health education is inconsistent and at times non-existent for many youth in Canada.
Third, section 159 the Criminal Code of Canada includes a clause that sets the age of consent for anal sex at 18
years, which is higher than for any other type of sexual activity. There is no logical or medical reason to treat one type
of sexual activity differently from others. Both the Ontario and Quebec Courts of Appeal have already found this
distinction to be unconstitutional.
While this clause exists, this means, for example, that two 16-year-olds who engage in consensual anal sex could be
prosecuted, regardless of the intent of Bill C-2 to not criminalize consensual teenage sexual activity.
Our preference is that Bill C-2 not be passed. We offer the following three recommendations if Bill C-2 is passed.
First, amend Bill C-2 and all other relevant legislation to ensure that information provided by a young person when
accessing sexual health education, information and medical services is considered to be privileged information unless
there is clear evidence of exploitation. This would mean that if a young person discloses a consensual non-exploitive
relationship with a person outside of the five-year exemption, this would be kept confidential and not reported.
Second, continue to provide strong federal government support to the Joint Consortium on School Health, to its
working groups and to its partners, to help ensure that age-appropriate, accurate and unbiased sexual health education
is provided to children and youth in schools across Canada.
Three, remove section 159, related to consent for anal sex, from the Criminal Code of Canada. This will make the
age of consent uniform for all sexual practices and orientations.
Senator Andreychuk: I very much agree with many of the things that Mr. Kissner and Dr. Lamont have stated.
Mr. Kissner, for clarification, when you refer to children serviced by your government, do you mean children in
some welfare capacity?
Mr. Kissner: That is correct.
Senator Andreychuk: I want to be clear that is what we are talking about: children who have already been taken into
care because of some breakdown according to your provincial legislation. I am well aware of those terms, having
worked in that field.
Mr. Kissner: That is correct.
Senator Andreychuk: This bill was not intended to correct all of the problems, I think even from the minister's point
of view. It was to be one more way of trying to protect children in our society. The need to reassure children in the
school, in the home and in the community still goes without saying. The government, as I understand it, believes that
this would be helpful in addressing the protection of children.
With respect to anal intercourse, this bill is not intended to correct all of the deficiencies or difficulties in the
Criminal Code. The government has chosen certain issues, and so that provision does not come as a result of Bill C-2.
You are discussing what was in the Criminal Code before, correct?
I am seeing a nod.
Dr. Lamont: Yes.
Senator Andreychuk: That issue is still one that stands alone that perhaps government and Parliament should deal
This bill before us proposes to raising the age of consent from 14 to 16. Do you not think that the close-in-age
exception of five years is a good way to go? The government is saying, ``We do not know, really.'' When you say that
one category of predators has an interest in exploiting children under 13 and that another category has an interest in
exploiting children over 13, you are making a judgment call because you could take the age of 12 and make a case, you
could take the age of 10 and make a case, you could take the age of 14 and make a case and you could take the age of
15 and make a case.
The government, in its wisdom, has decided that they will go the route of choosing the ages they have, which is quite
consistent with New Zealand, Australia and to some extent the U.K. In addition, some European countries have
passed legislation. Therefore, it is a judgment call. If we had simply proposed to raise the age to 16, we would have the
problem of exploitation that naturally goes with awareness. Is it exploitation or is it just exploration — young kids
being together? It is a very volatile position for them to be in.
My point is that we are not quite sure of many issues in this area. However, the government was quite sure that if
they moved the age there would be an increased capability to protect young people, not as an exclusive act but doing all
the other things as well, such as understanding that there is still a secrecy issue in the sense that kids do not want to
Do you not think that if we pass this legislation and if we continue to do the other things that you have stated that
children could be better off than they are today? If we do not raise the age, we already know how vulnerable they are. If
we increase the age of consent and are mindful that this is not the end of the road in helping children and that we have
to do so many other things for them, it is a step in the right direction.
Mr. Kissner: I appreciate the warmth of your question. For me, the best way to think about it is in terms of looking
at community development. There is an area of community development called an interstitial area. With
developmental maturity, an age range is the same kind of thing. We were saying that we had some clarity before. It
kind of worked for younger kids, but it did not work too well. There was a case in Edmonton where a couple of people
got off. The response was to say that we should just raise the age. We took a look and our concern was that, first, there
would be a loss of conceptual clarity. Second, if you assume that offenders are like this glass of water, and there are
certain number of them, you will then shift from the age of 15 to 16 to people who are 14 and 15 and increase the
concentration of activity on a different age group.
We have no question about what the legislation is trying to do, but it will have unintended effects. A number of
other children need protection. We felt that a better response would be to look at this issue in terms of judicial
discretion to set aside informed consent since most of the cases, as my colleague talked about, were raised after the fact
and that a judge could take a look and say, ``Did an exploitive relationship happen in this circumstance?'' That would
have actually protected more children because you could have gone up to the age of 18, and all of these other children
who are targeted by this other group would have been included. We would have had the same clarity for younger
Our response is not that this is not a sincere attempt. Everyone is obviously trying to protect kids, but there is a
better way to do it. From our perspective, the advantage of the Senate is that it is an institution of sober second
thought or reflection. You can look at this issue and say, ``We all want to protect kids. We do not want to be the party
that has to face all of the parents in this country who now have children at greater risk. We want to come forward with
something that will work.'' In the same way that we have interstitial areas in community development, we will have
interstitial areas in legislation. This meets the needs of my colleagues and this meets the needs of more kids. Quite
frankly, I think it meets everyone's political needs.
Senator Andreychuk: It does not seem there is any disagreement that sexually active 14 year-olds are vulnerable to
adults. We are also saying that there is some interplay between young kids growing up, and we should not stigmatize
that. There seems to be that kind of understanding.
I agree with you that if we went to 18, we might be even more protective. However, if we go the route of informed
consent, do you not believe that those who exploit young people are the very individuals who preclude a young person
from giving informed consent?
We have gone that way with assaults on women. In a family assault, it is very hard for that woman to go to court
and speak against someone she was involved with because she is still emotionally tied to that person. She does not want
to be beaten up, but she is emotionally tied to that individual. In the case of a young person who is attracted to or
talked into whatever situation, how can that young person give an informed consent and stick to it against the very
person that we are trying to get at?
Mr. Kissner: My daughter is 14. That was one of my own tests of this new provision. I thought, ``Will my daughter
be better off under this legislation?'' Yes, she will be. My daughter goes to school every day and we are active in our
community. If someone exploits her or seduces her in certain ways, I want some real action. For certain kids, this
legislation will be hugely effective.
However, we are saying that the legislation will have differential effects. There will be other kids who in fact will be
at greater risk. If we looked at a slightly different shift in the way this legislation is being proposed, we could protect
more kids, including my daughter and the other kids who are at greater risk.
Senator Merchant: I would like to get some direction from you because you obviously know about many things in
this area. If the law does not reflect the realities of society, do you feel that it will be followed or that it will be
disregarded? I ask that question because research has shown that today's children are engaging in sexual activity at
ever earlier ages. The average age of first sexual intercourse for students in Grades 7, 9 and 11 was 14.1 years among
boys and 14.5 among girls. If we were to raise the age of consent from 14 years to 16, you have stated that there could
be serious unintended consequences, one of which would be to criminalize consensual youth activity.
Do you think the law should lead or follow social trends when it comes to consensual sexual activity? Can you direct
us a little bit? Are we trying to change the morals of young children through these provisions in the legislation? Do they
reflect the views of the government of the day?
Dr. Lamont: I would like to make a couple of comments. The first has to do with sexual activity. The reality is that
when the literature talks about sexual activity, it is usually confined to intercourse. In fact, if you survey youth even
younger than 14, they are not getting involved in the general concept of sexual activity at any younger age. What is
happening is that a greater proportion is having intercourse earlier but not being involved earlier.
If you take all the other sexual activities, including anal intercourse, the proportion of 14-year-olds or 15-year-olds is
basically the same as it has been for a long time. We need to be clear about whether we are talking about intercourse or
The other thing that is important in terms of consent has to do with my area of work, and that is helping people with
health care issues and education. This legislation will affect that as well. The system we have at the moment works very
well. If a young person comes in for treatment or assessment and we have a question about their ability to give consent,
we have an uninvolved professional do an assessment to determine whether this person has the ability to give informed
consent, which allows us to provide education and clinical services to these people. As you have heard before, if these
young people cannot get access to education and services, they will avoid those services and that education rather than
deal with their authority figures or their parents to get permission to have treatment for an infection or to have a
pregnancy terminated or to have pregnancy care. It affects that aspect of adolescent or teenaged sexual activity as well.
Senator Merchant: In October 2005, the Department of Justice Canada issued the following statement:
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.
Do you feel that we are meeting this requirement, namely, that parental guidance and sexual health education are
Dr. Lamont: I am not sure that they are there. I would agree with the statement that parental guidance would be
ideal, but, unfortunately, few children get that information from their parents as the primary source. We would like to
correct that if we could, but at the present time they look to peers and the education system as their primary source of
Senator Merchant: Do you feel that the education system is meeting their requirements?
Dr. Lamont: Not at all. Certainly, the curriculum has been written and the information is there, but unfortunately
there is not any uniform application of a standard curriculum that is age-appropriate. Unfortunately, many school
districts do not prepare their teachers to give the course. If you talk to youth, many feel that their sexual and health
education is quite inadequate.
Senator Cowan: All of us want to do everything we can to protect youth from exploitation and abuse, and encourage
them to have all the information they need to make appropriate choices. Superficially, one would think that raising the
age of consent would be a good thing. The older people are, presumably the more mature they are and, therefore,
better able to make the right choices. On the face of it, one would say that it sounds good.
However, in preparing for these hearings and hearing you read your briefs, I was struck this morning by the
discussion of the unintended consequences, which are not widely understood. The concern I have is that there might be
a certain perception out there. Simplistically and superficially, one would think all we have to do is raise the age of
consent and then we are protecting people. If this bill were to pass in its current form, the public perception might be
that that is done and we do not have to worry about it anymore, and there would be a lack of impetus for governments
at all levels.
We all understand the constitutional and jurisdictional issues that we are faced with in this country. People might
say that they do not have to worry about that anymore, and we would not get the focus that is necessary —- which all
of you have addressed and with which I am sure all of us would agree — on the need to provide increased information
programs that are accessible and are accessed by people. I forget who it was who drew to our attention the numbers of
people who do not graduate from high school or do not even get to high school, so simply to have a program available
in a high school does not get to those people who really need it.
I am struggling with this notion. On the one hand, I think it is good to raise the age of consent, but I am not sure
that it gets at the problem. I agree with the statements about the need to emphasize the importance of becoming
involved in the community and sports and clubs that give people a sense of belonging, and I agree with the comments
about getting at poverty. Can you help me a bit with this? I think that most people would find a disconnect between
those two points.
Dr. Lamont: In terms of our organization and the people we look after, they are not the advantaged people who
have the opportunity to be in a two-parent family and to go to hockey games and those kinds of things. We are talking
about consequences for the people who are more disadvantaged. The impact of this legislation on our ability to take
care of them is the downside. Unfortunately, that is where we are working. We have to look at the age-of-consent
provisions in this legislation from that point of view and the fact that they will interfere with our ability to take care of
these people, to educate them and give them health care. Many of the people we look after are 16 and under.
Ms. Downer: I go back to the comment that was made earlier about whether education is consistent and whether
people are getting education in the system. As my colleague said, they are not. What will this mean? Will this mean that
teachers will not be teaching students about sexual health until age 16, when we know the age that they are actually
engaging in sex is 14.1 for boys and 14.5 for girls? Will that mean that teachers will be even less likely to teach students
the things they need to know?
Mr. Kissner: We have the ability to try social policy and we talk about inventiveness. We can do things like go to our
welfare agencies and provide more funding for kids to be engaged in activities like sports and band. In many areas of
the country, we do not have the funding for many of those kids to be able to participate in the activities that my
daughter can do in our community. As soon as you engage kids and develop a passion, that is how we develop our
In my mind, we should at least be funding pilot projects throughout the country, where we are trying out different
things and inventing things. People really care about kids, and from a social welfare perspective, we are happy to try. If
something actually works on a small basis, everyone will endorse it because we all save money.
These are all the kids at risk. What we discover with them is that kids are all physiology and emotion. This is not
about thinking and doing. How do we pick people who are connected to physiology and emotion? We engage them in
physical activities and begin to shift some other patterns.
Senator Di Nino: This is a very controversial issue. All three of you made presentations that are to be respected given
I wish to put on the record again that Bill C-22, which is part of Bill C-2, had been passed by the House of
Commons and died on the Order Paper in the Senate at prorogation. Members of the House of Commons had heard in
some cases from the children but primarily from the parents — I have to put in a plug for the grandparents because I
am a grandparent as well — about the concern over this issue and the ability of a 14-year-old to make a reasonable,
informed decision about sexual activity. It was in response to the loud voices of many Canadians that Bill C-22, which
eventually found its way into Bill C-2, was drafted.
I also have to agree that this bill will not solve all the problems. There is no question. This is only one of the tools
that need to be used to deal with this emotional and controversial issue. I think there is a feeling that it will be helpful in
ensuring that fewer young women, and in some cases young men, will be victimized if this bill is passed.
My question is in regard to statistics presented to us by the Canadian Centre for Justice Statistics. In their
presentation, they talked about the increase of sexual offences since 2003. Although there had been some decrease in
the previous 10 years, there has been an increase since 2003. I was struck by two items in their testimony. They say that
girls aged 12 to 14 are the most vulnerable group for these offences. When I asked the question, they also said to me
that their survey, their information gathering, was restricted to kids under 14. They do not have statistics for 15-year-
olds and 16-year-olds because they were only concerned with that age because of the age of consent the way it exists
today. Are those statistics supported by your experiences, that is to say, that girls between 12 and 14 are most
vulnerable for these sexual offences?
Dr. Lamont: I cannot comment other than to say that, in my experience, being able to make an informed choice or
give informed consent is not age related at all. In my clinical practice, I meet 12-year-olds who are quite capable of
making informed consent, and I meet some 20-year-olds or 30-year-olds that I have a struggle with to help them make
an informed consent. The idea of a magical age when suddenly people can make an informed consent, when they
cannot the day before, is a bit artificial.
In terms of offences, that is out of my area of expertise entirely.
Mr. Kissner: There is a transition that happens at schools roughly about that time. We lose about 3 per cent of
Canadian children between elementary and high school. We keep statistics after kids go into Grade 8, but I am not
aware of many studies that actually try to find out where these kids go.
We do know that it is a time when kids are subjected to bullying and social exclusion. Who are the people who are
targeted? They are the people who are socially excluded. To the degree that we increase social inclusion, it makes a
huge difference. Whether this is done by defining age categories or not, if you try to use a simple solution to a complex
problem, you can create greater problems. There probably is a simple, better solution.
Senator Di Nino: I want to deal with another aspect of that testimony that I found disturbing. On this issue, the
presenter told us that only 8 per cent of the potential market, which is 12-year-olds to 14-year-olds, responded. Do
youth who may be engaged in sexual activity, willingly or otherwise, have difficulty speaking about it? Eight per cent is
a very small number.
Mr. Kissner: We are having trouble understanding the statistic you are using.
Senator Di Nino: When the study was done, only 8 per cent of those who they asked to participate responded. Is this
normal? Is this what one would expect? It surprised me that such a low percentage responded.
Mr. Kissner: You would have to look at the methodology. We can increase cooperation. You can present two
questions and ask the participants to roll a dice to determine which one they will answer. In that way you can increase
participation in embarrassing studies. The key is to look at the survey methodology. Without knowing that, there is no
way of knowing why the response was so low.
Senator Di Nino: This study was done by professional people who do this all the time.
My impression from the information we have received is that the age-of-consent provisions will not solve all the
problems, but they will be helpful in solving part of the problem. Would you agree?
Mr. Kissner: It will make a segment of the population safer. It will cause greater risk for other segments of the
Senator Stratton: My questions are with respect to raising of the age of consent and the exploitation of both male
and female youth. As Senator Di Nino said, this is just one tool and there are many others that can and should be
utilized and encouraged. We are not disagreeing with that, but, as you have said, this will indeed help to protect a
certain segment of our society, which is the intent of the legislation.
I am more concerned with the exploitation of youth in two areas. One is exploitation through the Internet. My
grandsons love the Internet. They talk to their buddies over the Internet, and there is always concern about what
transpires there. Parents are petrified.
I will give you a scenario to illustrate my other concern. I was at an urgent care hospital last Friday and witnessed a
young girl, who is a single mom, being brought in by the police. She was underage and had been drinking too much,
and they arrested her for assaulting and spitting at the police officers. One of the officers was asking the young girl why
she was hanging around with the guy she was with, who they said was bad news. They were very concerned.
If the law can protect one individual from a bad background, why would we not do that? I realize that we must do
what we can to help the family of this girl, but we must also protect the girl by raising the age of consent. Why would
we not do that?
Dr. Lamont: In fact, this law will not protect that person. It will punish an act that is committed, but it will not
protect that young woman from the decision she makes at her young age.
Senator Stratton: The girl was under the age of 16. If the police knew that the individual exploiting her was older
than 21, 22 or 23, more than five years older, they would have a tool to do something about it. Why would we not do
Dr. Lamont: Again, they could use the law to punish him after the fact.
Senator Stratton: They could threaten him. They could tell him that if he touches that girl, they will come after him,
before the event. Why would we not do that?
Mr. Kissner: Your point is a good one. This is an incremental improvement for some kids, but it will put other kids
at greater risk. We could do a much better job and include a wider age range of kids. Simply by giving judicial
discretion to set aside consent, you would accomplish exactly what you talked about, plus you could include more kids.
In our framework, the older person will befriend the younger person when they are 14 or 15, and they will wait until
their sixteenth birthday. The problem is that you increase the concentration of risk for kids who are 16 and 17.
Our point is not that this is not well-intentioned legislation. It is that it could be better written and accomplish its
goals much better. We are not defending the current legislation at all.
The Chair: Ms. Downer, what do we know about the rate of AIDS infection among the people who are the focus of
this bill, that is, young and middle teenagers?
Ms. Downer: The rate of infection among youth is quite low in Canada. It is definitely increasing worldwide. The
largest percentage of people worldwide who are getting infected with HIV are youth, which is a worrying trend for
what could happen in Canada. The rates of STIs are increasing, which is also a worrying trend in relation to HIV.
The Chair: That all feeds into your concerns about education.
Ms. Downer: Absolutely.
The Chair: I am trying to grasp what the likely impact of the age-of-consent provisions will be on the ground in
terms of law enforcement. Currently under the law for 12- and 13-year-olds there is a close-in-age exemption of two
years, and a bigger gap than that is illegal for consensual sexual relations. I stress ``consensual''; I am not saying
``exploitative.'' Child prostitution is a whole different thing, and no one in this room is here to defend it.
What do we know about the way the law is applied for 12- and 13-year-olds now? If a 13-year-old has consensual
sexual relations with a 16-year-old, what happens? How many complaints are laid in such situations? How many
people are arrested and charged?
Mr. Kissner: Although I used to teach criminology, that was not my specific area and so I am not aware. I suspect it
would vary greatly by jurisdiction and community. Much of how people react to things relates to the human elements.
Dr. Lamont: I am not aware that it has ever happened in the last 35 years during which I have practised gynecology.
If the young woman knows about the law, she will avoid talking about that when she comes for services. She will not
The only case I have heard of in my adult life involved a neighbour's 14-year-old son who was having sex with a 19-
year-old student. The parents basically said that if he did not stop they were going to go to the police. That was the
only case I have ever heard where it actually came out in public. In my professional life, I have never been aware of any
The Chair: I will certainly want to pursue this line of questioning with other witnesses as they come before us. I find
that extremely interesting. It would suggest that whatever the law is in this area, it serves more as a sort of exhortation,
a tablet or a signpost than an actual law enforcement situation in the normal way we think of things in the Criminal
Senator Chaput: Would you have an idea of the percentage of young people who will be helped by this bill and the
percentage of the others who, according to what I have just heard, the bill will not help at all? Do you have an idea?
Dr. Lamont: Given my involvement in education and clinical services, I only have an idea of who would not be
helped. I know that it will become a problem for a significant proportion of the people for whom we care in terms of
accessing these services because of their age.
Senator Chaput: For those young people, what would be a solution for them? Perhaps you said it before, but I want
to make sure I understand.
Dr. Lamont: At the moment, we are able to assess their ability to give us informed consent using a third party. The
age does not matter. We are able to do that assessment and document the fact that this person understands what they
are asking for and what the consequences are of the involvement in education or services. If there is a strict rule that
you have to be 16 to give consent, then we will have to find consent in other places, like going to social services or to
parents. It will be a major problem in terms of delivering that information or services to these people.
Senator Chaput: Did you have anything to add?
Mr. Kissner: It is a good question. It will go back to whether or not children were involved in this research to
determine this legislation and how much data was prepared. I do not think there was a lot of consultation with children
and research in terms of focus groups or otherwise to be able to point to an answer. My guess would be that until it is
done, no one will know.
If you think of it as a normal curve, we think kids in poverty will be less served by this legislation. Kids who are
more disconnected will need the kind of services my colleagues provide.
Senator Andreychuk: Vulnerable youth is a whole study that deserves attention. We in the Senate have studied, just
from the point of view of the UN Convention on the Rights of the Child, the needs of children in Canada. There are
many of them, and by no means was that an exhaustive list.
If I understand this legislation, it is not legislation geared toward the child saying that when they become a teenager
and are exploring sexual activity they may or may not want to tell. We have the problems of them getting good
education, getting help that they need. This legislation is saying that because they are young, because they are
exploring, because they are not the full age of majority, they are vulnerable from adults. The legislation is meant to deal
with the adult behaviour toward the child. That is my take on it.
If I understand the position that both of you have expressed, it is that we may be going some way to helping 14- and
15-year-olds. Time will tell. The provisions in Bill C-2 will help them in the sense of deterring or stopping the adult
getting at them. That is what we are after. The child is vulnerable every time in those situations. What I hear being
advocated is that we should have included it and put it to age 18. Time will tell there.
I do not know if you want to respond. Those comments flowed from what the chair was saying.
With respect to AIDS and the difficulties regarding transmittable diseases, it seems to me that in Canada we need to
do a lot more educating. We think we have done quite a bit, but then we drop our attention because of other competing
Ms. Downer, when you talk about kids being vulnerable, is it not true that everyone needs more education with
respect to HIV? I recently saw statistics dealing with prostitution that said so much of it is going on without condoms.
Every time I turn around we are not protecting ourselves. We have heard about more sexual activity in aging
populations and their misunderstanding or lack of knowledge about the issue of AIDS in Canada. Is your plea for
more education for everyone? That is really the issue.
Ms. Downer: Yes. I would say that clearly everyone needs more education around HIV. Our concern around the
provisions in Bill C-2 is that if parents and the general community do not know enough, then students will be getting it
in school, primarily. We know it is inconsistent there. We are concerned that if you raise the age of consent to 16 and
we know that youth are having sex at 14, will our teachers be even less willing to provide the education that youth need
around HIV/AIDS and other STIs? If the age of consent is raised to 16, then according to the law they should not
practise sex. Would teachers be even less willing to teach students? Would there be that sort of disconnect?
Senator Andreychuk: Are you saying there is hesitancy now and it may increase?
Ms. Downer: Absolutely. There is a huge inconsistency across communities.
Senator Andreychuk: We should be attacking the hesitancy that exists now. In other words, I think we should be
making Canadians aware, and particularly young people.
Ms. Downer: Absolutely.
Dr. Lamont: To expand the question to other STIs, we see a high rate of chlamydia in the 15 to 24 age group, but
two thirds of the cases occur in the younger group and they only make up 14 per cent of the population. This is a
particularly vulnerable group to the whole range of STIs, and the same issues apply in terms of education and access to
Although you have said that this legislation is aimed at getting the adult, the consequences are for the young folks
who may not then be able to access this care.
Senator Andreychuk: You are saying they are not getting it now.
Dr. Lamont: They can get it now, though. That is the issue. They can access care and we can treat them now. The
legislation may be aimed at getting the adult perpetrator, but it will have a direct effect on the adolescents we are trying
to take care of.
Senator Cowan: The unintended consequences may be the more important part of it.
Dr. Lamont: They are for me.
Senator Cowan: The age of consent for exploitive sex is now 18. There is no change because it is already 18. The law
already provides sanctions for many of the horrific examples that we hear and read about. The problem is that it is not
preventing the crime from taking place and it is not protecting the victims of crime.
Surely we are placing the emphasis at the wrong end of things. We should be emphasizing more protection, which
involves education, encouragement and more resources being made available to enforcement agencies rather than
simply concentrating on raising an age and assuming that some magic will come of it.
Given what I have heard from you today, it seems to me that this by itself may or may not be a good thing, but the
unintended consequences, in your minds, outweigh any advantage in the real or perceived protection afforded by
raising the age of consent. Is that correct?
Mr. Kissner: Yes.
Senator Merchant: With respect to the exception made to allow young people to marry even when one is under the
age of 16 and the other is more than five years older, on the one hand we are saying that people under 16 are incapable
of making a decision to enter into a sexual relationship with someone more than five years older, and on the other hand
we are saying that it is possible for them to marry. Might this force young people into marriage before they are ready to
enter into that kind of relationship?
Dr. Lamont: I was not aware that one could consent to marry at the age of 16.
Senator Merchant: I think that has come up before in discussion.
The Chair: Yes, in some provinces. It varies according to jurisdiction.
Dr. Lamont: That is quite an ironic issue, that you could consent to marry but you could not consent to sexual
Senator Merchant: Yes.
I have read some material that was sent to us by the Coalition for Lesbian and Gay Rights in Ontario. They feel that
the application of the law may disproportionately target certain segments of society, and they are concerned. Do you
think that people would be more likely to report a lesbian or gay relationship while they may ignore a heterosexual
relationship because of the attached stigma? Ms. Downer, do you have any feelings or information in this regard?
Ms. Downer: I know that other organizations presenting to you later in the week will have more information on that
I certainly know that gay and lesbian relationships are treated differently from heterosexual relationships. You will
see that the close-in-age exemption might not be appropriate for those sorts of relationships because sometimes the
relationships they engage in, given the small group of youth who do come out as homosexual, might not have the same
pool of people from which to draw their sexual partners. You will see a differential treatment of those relationships.
Mr. Kissner: It is a frequency argument. If you live in a small town and there are only a few people who are gay and
you are 15 years of age, it is possible you could become involved in sexual exploration with a 22-year-old. In that sense,
they could be right.
Senator Oliver: When I listened to the three papers that were presented and to the questions and a number of the
answers that you gave, I was struck by the fact that Bill C-2 — not Bill C-22 — is a proposed federal statute that
amends the Criminal Code, which is a federal statute. A number of the questions and a number of the responses dealt
with matters that were not federal in jurisdiction but were provincial matters under our Constitution. Under our
Constitution, things like property, civil rights and education are matters for the province to legislate.
As Senator Merchant indicated, the solemnization of marriage is a provincial matter and not a federal one. Bill C-2
is designed to deal with amendments to the code to protect children from, as Senator Andreychuk has said, adults and
However, I think that much of the evidence today concerns issues that will have to be dealt with by the provinces
because they fall within the regime of the provincial governments; that is, the education of children in relation to the
matters you have discussed.
Would you agree that we do have a division of powers in Canada in that some aspects are federal, some are
provincial and occasionally there is an overlap?
Mr. Kissner: Yes. To be clear, all we are saying is that we had singular legislation. The federal government is
assuming it can add more water to the glass without diluting the response, both in the clarity of law enforcement terms
and whether or not there is clarity across the spectrum and some kids are harmed.
All we are saying is that we need a second glass. We need to keep the first one, and we need to do something for
adolescents that is slightly different and that could have occurred within the legislation through setting aside informed
consent in those cases where the judiciary believes exploitation has occurred. That would have been a very simple thing
to do, and it would have made things better for everyone. It was within the power of the federal government.
Senator Oliver: However, I have heard you also say that several aspects of this bill are good with in fact some
improvements and advancements to them, and you would like to have seen it go further.
Mr. Kissner: It is really a different lens depending on how you look at it. If you are looking at it from the ground, as
Dr. Lamont was saying, after the fact you will come back with a certain response.
You may say this law is not working, so if we only did this, it would be fixed. We are saying that if you do that, then
look at the broader perspective and see that what you are really trying to do is to protect kids. Realize that there is a
whole different group of people that actually exploits adolescents, and then come back with a law that will protect kids
from pedophiles. By changing the law in this way, we can reach a broader range of kids and have it work better for
everybody. Their interests are met, our interests are met, everyone's interests are met.
Senator Oliver: However, for the educational component that you have discussed at length, that is a matter for the
provinces because it is not within the jurisdiction of the federal government.
Mr. Kissner: Yes, for the educational aspect. However, in terms of welfare, social innovativeness and
experimentation, I think that can occur through the federal government.
Senator Cowan: I was listening to Senator Oliver talk about the division of responsibilities being with the federal and
provincial governments, and I addressed that earlier. Clearly, education in schools is a responsibility for the provincial
government, but there is certainly broad public health education that could be addressed by Health Canada. Many of
the things we are talking about here could be the subject of health education programs run by Health Canada,
presumably in cooperation with provincial jurisdictions. However, it is not solely and simply a provincial jurisdiction.
Would you agree?
Dr. Lamont: Absolutely.
Mr. Kissner: In addition, most of the kids who need this education are actually not in school. That is why you want
some kind of a federal agency involved.
The Chair: Thank you all very much indeed. It has been an extremely interesting and very helpful session for us. We
are grateful to you.
The committee adjourned.