Youth tell justice committee to keep consent at 14

It’s a law so flimsy it was struck down in Nova Scotia by way of routine administrative hearing in 2006. Now politicians who support raising the age of sexual consent to 16 will attempt to use the abolition of outdated anal sex provisions to win approval from the bill’s detractors.

The law criminalizing anal sex under the age of 18 — even if both parties are, for instance 17 — was first struck down during a Toronto immigration case in 1995. Since then, it’s been ruled unconstitutional in five Canadian provinces.

The current legislation, a bill to raise the age of sexual consent — other than for anal sex — from 14 to 16 has been winding its way through the House Of Commons since June 2006.

Now, the justice committee enters the amendment phase of proceedings on C-22 when Parliament resumes after a two-week Easter break Apr 11. Almost all groups that oppose raising the age of consent also support striking the gay sex provision; the NDP and Liberals are hoping that such an amendment is enough to satisfy C-22’s critics.

Queer activist Andrew Brett, head of the youth-led Age Of Consent Committee, thinks the two issues go hand in hand. Brett and co-presenter Nicholas Dodds were the only presenters against C-22 unwilling to entertain second choice amendments.

“When [the anal sex law] was struck down by the Ontario court of appeal in May 1995, the majority opinion held that the discrimination was unconstitutional not based on sexual orientation, but on age. This sets a precedent which leads us to believe that bill C-22 can be struck down as a violation of Section 15 of the Charter Of Rights And Freedoms on the basis that it discriminates against young people without demonstrable justification,” Brett told the committee Mar 29.

This contrasts with the position taken by other critics of C-22 like the Canadian Federation For Sexual Health (formerly Planned Parenthood), the Canadian AIDS Society and Egale Canada — all of whom oppose C-22.

Each took the majority of their time in front of the justice committee to speak against C-22, but all three devoted a slice of their presentations to expressing support for an anal-sex amendment.

“We don’t like that [the age of consent] is being raised, but if it is being raised, then at least they should deal with [the anal sex prohibition]. There’s no medical or logical reason for the unequal treatment of anal sex,” says Andrea Cohen, executive director of the Canadian Federation for Sexual Health, who also presented to the justice committee.

It’s an exercise the Liberals tried to circumvent Mar 21, one day before public consultations were set to open.

Jennings gave notice that the Liberals would introduce a motion to skip justice committee hearings on the consent bill and move directly to final approval by the House Of Commons. That would have jettisoned both the public consultation and amendment phases of parliamentary procedure.

This came less than a month after Jennings made comments extolling the virtues of public consultation.

“We should not cut short that debate. I’m looking forward to hearing from all the stakeholders,” Jennings told Capital Xtra Mar 8.

An objection to Jennings’ move — made on technical grounds — was raised by Conservative house leader Peter Van Loan.

“Much as we would like that to move quickly, much as we would like to see those bills pass quickly, the fact remains the Standing Orders exist as their protection that this Parliament will work in the fashion that it does,” he declared.

The Liberal motion was ruled out of order. Now, the Liberals support the anal-sex amendment that would have been impossible had Jennings had her way.

Meanwhile, the committee’s Conservative chair is likely to rule anal-sex amendments inadmissible additions to C-22. Jennings broke the news to presenters Mar 27.

“We’ve been told that [amending the anal sex law] is outside the scope of the bill,” she said.

Amendments made to bills at the justice committee must be related to the bill they are considering. This provision prevents opposition parties from inserting unrelated clauses into a piece of legislation at the committee stage. It is up to the committee’s chair, in this case Conservative MP Art Hanger, to rule whether proposed amendments are fair game.

“It is not in the scope of the bill. It isn’t,” confirmed the chair, MP Art Hanger.

The NDP’s Comartin disagrees.

“It is inappropriate that [Hanger] should rule it out of order before the amendment is presented, because I plan to argue that it is in fact within the scope of the bill,” said Comartin to the committee.

After the meeting, Hanger spent roughly 15 minutes trying to defend his position to members of Egale and the public health sector. The provision of the criminal code dealing with anal sex — Section 159 — isn’t mentioned by Bill C-22 and therefore it can’t be touched by amendments, he said.

The committee — the majority of whom are from opposition parties — can overturn the speaker’s decision, but it remains up to the Conservatives to reintroduce the bill into the House Of Commons, which they can do however they see fit.

The committee heard from 20 organizations on both sides of the issue. Police and Christian groups support C-22, while health groups and queer groups oppose it. The legal community appears split on the issue, with roughly half the presenters opposed and half in favour.

Canada has a storied history when it comes to its anal sex laws — first an absolute prohibition, then it was illegal for those under the age of 21, now 18. In 1995, Henry Halm was denied entry into Canada because of a previous conviction in the US: four counts of sodomy. The judge, finding that our anal sex provisions were unconstitutional, set aside Halm’s deportation order and allowed him to stay.

That was February; by May 1995, justice Rosalie Abella (now a member of the Supreme Court Of Canada) struck down the law in Ontario, setting off a string of successful attempts to strike the law in BC, Quebec, Alberta and, most recently, Nova Scotia.