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Age of consent: How is reverse onus a compromise?

Last recommendations harp on "presumption" hail mary

Suggestions from a legal aid clinic specializing in youth issues caught the ear of MPs in the final hours of public hearings on C-22, a bill to raise the age of sexual consent to 16 from 14. Meanwhile, legal experts lamented the bill’s consequences.

Martha MacKinnon of Justice For Children And Youth presented to the justice committee
on Mar 29, part of the second-to-last panel they heard. Her presentation focussed on the five-year close-in-age exemption included in C-22; she recommended an alternative to the hard-line age cut-off.

“The close-in-age exemption is a proxy for power imbalance,” she said.

Instead of 5-year age differences always being illegal, she recommended that the near-age exemption clause be amended to consider their sex “presumptively exploitative” – which would put the onus on the couple to prove their relationship is non-exploitive.

Liberal MP Derek Lee was the first to jump on the possibility of a reverse-onus amendment.

“I find your ‘presumptive exploitation’ recommendation interesting,” Lee told MacKinnon.

Justice For Children And Youth (JCY) had been expected to oppose C-22.

In the second session, Lee and Liberal justice critic Marlene Jennings asked presenters – none of whom had included presumption in their briefs – to comment on JCY’s recommendation. With the exception of anti-gay lobbyists Institute For Marriage And The Family, all the presenters denounced C-22 based on the legal problems it creates.

“In the absence of evidence of harm, the rush to pass C-22 is an unconsidered response to a moral concern,” said Jason Gratl of the BC Civil Liberties Association.

Gratl accused the committee of moving toward a morals-based approach to law in place of the harm-based approach accepted by the courts in the 1992 Butler decision.

“And we wouldn’t want to see that shift take place in the field of sexual education,” Gratl said.

“This approach to minors is more populist than principled.”

U of O Law Professor Daphne Gilbert suggested that, because 15-year-olds can get married in the three territories (and elsewhere with parental or state consent), it creates potential constitutional morass in provincial and federal jurisdiction.

Glibert and The Elizabeth Fry Society’s Kim Pate spoke against the bill on the grounds that it further polices and criminalizes the sexuality of teen girls. Some teens will refuse to testify against their partner, Pate said.

“We would be loath to see obstruction charges against the young person,” she said.

A similar argument was used by the Age Of Consent Committee with respect to the criminalizing of queer teen sex.

“[Queer] youth will be disproportionately affected by this bill compared to their heterosexual counterparts. The choices of queer youth already face additional scrutiny when it comes to their sexual identity and activity,” said queer activist Andrew Brett.

Age Of Consent presenters Brett and eighteen-year-old Nicholas Dodds (the only teen to speak to the justice committee) were the only ones who flatly refused to entertain the notion of reverse onus.

William Trudell from the Canadian Association of Criminal Lawyers seemed satisfied with the recommendation. Gilbert and Pate both maintained that, while canning the bill is their first choice, it would be better amended as MacKinnon suggested than not amended at all.