4 min

Dear NDP caucus

Please vote down an age of consent increase

Until 1988 the age of consent in Canada for heterosexual activity ranged from 14 to 18, depending on whether the woman was seduced under promise of marriage, or was a virgin. The age of consent for homosexual activity, which was called “gross indecency,” was 21. It was a Conservative government, under Brian Mulroney, that brought in a bill to lower the age of consent to 14 for all sexual conduct but anal intercourse, for which the age was set at 18. As well, if there was a power imbalance in the relationship, for example a teacher or coach, the age was 18.

I was the NDP member on the committee that studied that bill, as our justice critic. We heard extensive evidence as to what the age should be. It was noted that some countries had lower ages (eg Japan and Spain at 13), others were at 14, and still others had higher ages of 15, 16, or even 21. But the evidence we heard supported 14 as the age at which young people are generally able to make these decisions about their sexual relationships. Of course some are more ready than others, but a line had to be drawn somewhere.

It was felt that increasing the age would simply mean that too many young people would be denied their sexual autonomy and see their consensual activity with an older partner criminalized.

There were no changes to the age of consent legislation for many years afterwards, despite ongoing efforts by conservative forces to increase the age. It was not until 2004 that the Liberal government moved to toughen the law by clarifying that if a relationship is deemed to be exploitive or coercive, that it would be criminalized (Bill C-2). As well, legislation was passed to address the issue of internet luring of young people for sexual purposes. Then in June of this year Vic Toews, the most rightwing attorney-general in our history, brought forward Bill C-22.

It is very important to understand what C-22 is really about, not what Toews says it is about. It is not about exploitive relationships between an older and younger partner. This is already dealt with in C-2. It is not about internet luring. This is already dealt with by the Criminal Code, as noted above. If these two provisions are inadequate, let the government bring in amendments to strengthen them. What the bill is about is very clear: it would deny 14 and 15 year old youth in Canada the right to ever legally consent to sex with anyone over 19 or 20 years of age. Ever.

Surely this cannot be right. I pointed out two glaring examples of the absurdity of this law during the recent debate at NDP federal council (editor’s note: at which the council voted to oppose Bill C-22).

1. It is legal to marry in a number of jurisdictions in Canada at the age of 15. Under this bill, a person aged 15 who married another person 20 or older could not have sexual relations with their spouse until they turned 16 (there is an exception in the Bill for those who are currently in this situation, but not for anyone else).

2. Many of you know my partner Max. His mother Amelia gave birth to Max when she was 15 years old. She fell in love with his father, a dashing 28-year-old army officer. They were married for 27 years. Under Bill C-22, they would have been committing a crime.

We heard many eloquent voices of young people at the federal council meeting condemning this bill. The NDP youth are strongly opposed to the bill.

It is not good enough to simply suggest that we would support the bill if we get the amendments (to also reduce the age of consent for anal sex to 16 from 18) proposed by NDP justice critic Joe Comartin. Indeed, on the equal age of consent for anal sex, the courts have already struck down the current law as being in breach of the Charter of Rights. The issue is this: Even with these amendments, the fundamental weakness of the bill remains, that is the increased criminalization of consensual, non-exploitive sexual relationships.

I know that concern has been expressed in caucus about the suggestion that predators are coming to Canada from other countries, including the US, to take advantage of our low age of consent laws. There is no empirical evidence to back up this claim, certainly none with any solid figures. We do not write criminal law based on speculation by the police. At the same time, we do know that there could be several thousand consensual relationships criminalized by this bill. This is an unacceptable price to pay in a democracy.

Imagine the terrible experience that a young person will be put through if this law is enacted. It is discovered that their older sexual partner had sex with them. Their partner is criminally charged, and they are ordered to attend court and testify against their partner. The trauma and pain this will inevitably entail can surely not be in the best interest of young people. It is for this reason among many others that so many of our traditional allies in this field, including Planned Parenthood Federation, the Canadian AIDS Society, Egale, and many others have opposed this bill.

We should listen to their voices.

I hope that caucus will insist on full hearings by the Justice Committee on this Bill. It is very important that the Committee hear from a diverse range of witnesses, particularly from the young people who will be affected by the bill.

I appeal to all of you to recognize that this is not good law, that we should not be part of Vic Toews’ American-style agenda for criminal law changes. We have seen the abject failure of that approach in the US, whether it be mandatory minimum sentencing or the “three strikes” law. We should not be facilitating that destructive approach in our country.

The bill is a terrible piece of legislation and I appeal to you to vote against it when it comes back to the House.