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R. v. Hess ; R. v. Nguyen, [1990] 2 S.C.R. 906

 

Victor John Hess                Appellant

 

v.         

 

Her Majesty The Queen Respondent

 

and between

 

Van Hung Nguyen                 Appellant

 

v.

 

Her Majesty The Queen Respondent

 

indexed as:  r. v. hess; r. v. nguyen

 

File Nos.:  20809, 21392.

 

1990:  February 1; 1990:  October 4.

 

Present:  Lamer C.J.*  and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.


 

on appeal from the courts of appeal for ontario and manitoba

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Fundamental justice ‑‑ Life, liberty and security of person ‑‑ Criminal Code prohibiting sexual intercourse with a female person under the age of fourteen years ‑‑ Absolute liability offence ‑‑ Whether s. 146(1) of the Code infringes s. 7 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1  of the Charter .

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Equality before the law ‑‑ Criminal Code prohibiting sexual intercourse with a female person under the age of fourteen years ‑‑ Whether s. 146(1) of the Code infringes s. 15 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1  of the Charter .

 

Criminal law ‑‑ Sexual offences ‑‑ Sexual intercourse with female under fourteen ‑‑ Whether s. 146(1) of the Criminal Code infringes the guarantee of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms or the right to equality before the law under s. 15  of the Charter .

 


Both appellants were charged with sexual intercourse with a female person under the age of 14 years under s. 146(1)  of the Criminal Code .  In the first case the trial judge quashed the indictment against Hess on the ground that s. 146(1)  infringed s. 15  of the Canadian Charter of Rights and Freedoms .  The Ontario Court of Appeal reversed the decision and ordered a new trial.  In the second case the trial judge convicted Nguyen.  The Manitoba Court of Appeal upheld the conviction.  The court found that there was no violation of s. 15  and that although s. 146(1)  breached s. 7  of the Charter , that breach was saved by s. 1 .  These appeals are to determine whether s. 146(1) of the Code infringes s. 7  or 15  of the Charter ; and, if so, whether the infringement is justified under s. 1  of the Charter .

 

Held (Gonthier and McLachlin JJ. dissenting):  The appeals should be allowed.

 

Per Lamer C.J. and Wilson, La Forest and L'Heureux‑Dubé JJ.:  It is a principle of fundamental justice that a criminal offence punishable by imprisonment must have a mens rea component.  Section 7  of the Charter  has elevated the requirement of mens rea from a presumption of statutory interpretation to a constitutionally mandated element of a criminal offence.  Section 146(1) of the Code, which makes it an indictable offence punishable by a maximum of life imprisonment for a man to have sexual intercourse with a female under the age of 14 who is not his wife, expressly removes the defence that the accused bona fide believed that the female was 14 or older.  An offence punishable by imprisonment that does not allow the accused a due diligence defence infringes the right to liberty enshrined in s. 7 .

 


Section 146(1) of the Code is not justified under s. 1  of the Charter  as a reasonable limit on an accused's s. 7  rights.  While the legislative objective of protecting female children from the harms that may result from premature sexual intercourse and pregnancy addresses a pressing and substantial concern, and the creation of an absolute liability offence is rationally connected to this concern, s. 146(1)  does not impair the s. 7  right as little as possible.  Any deterrence value the fear of mistaking the girl's age might have would be limited to borderline cases.  Further, no evidence was presented to support the deterrence argument and punishing the mentally innocent with a view to advancing the objective of deterrence is fundamentally unfair.  Questions of mental innocence cannot be left to the sentencing process.  Reliance on prosecutorial or judicial discretion to mitigate the harshness of an unjust law cannot serve to justify a fundamentally unsound provision.  The fact that s. 146(1)  has since been replaced by a series of measures that allow the defence of due diligence shows that Parliament has concluded that its objective can be effected in a manner that does not restrict an accused's right as much.

 

While only men may be charged under s. 146(1) of the Code, and only females may be complainants, the section does not infringe s. 15(1)  of the Charter .  The offence involves an act that as a matter of biological fact only men are capable of committing.  Since a female does not commit a physical act that can be readily equated with the one a male commits under s. 146(1) , the question of whether or not a female should be punished for seeking to have sex with a male under 14 years of age is a policy matter best left to the legislature.  Finally, sodomy or buggery are biologically different acts which the legislature has decided to deal with separately.

 


Section 28  of the Charter , which states that the rights and freedoms referred to in the Charter  "are guaranteed equally to male and female persons", does not prevent the legislature from creating an offence that as a matter of biological fact can only be committed by one sex.

 

Per Sopinka J.:  For the reasons given by the majority, s. 146(1) of the Code infringes s. 7  of the Charter  and cannot be saved under s. 1 .

 

As found by the minority, s. 146(1) of the Code infringes s. 15  of the Charter  but is saved by s. 1 .

 

Per Gonthier and McLachlin JJ. (dissenting):  It is a principle of fundamental justice under s. 7  of the Charter  that a law restricting an individual's liberty by means such as imprisonment must have as an essential element that the accused possess a guilty mind, or mens rea.  An essential element of s. 146(1) of the Code is that the victim be under the age of 14 years.  The Crown need not show that the accused knew the victim was less than 14, nor does his honest belief that the victim was over provide a defence.  Since an accused can be convicted under s. 146(1)  although he lacks a guilty mind, the section violates s. 7  of the Charter .

 


Two requirements must be met to establish infringement of s. 15  of the Charter .  First, an inequality or distinction in the treatment of members of groups must be established.  Second, this distinction must constitute discrimination.  Section 146 of the Code meets that test.  It makes distinctions on the basis of sex, one of the categories enumerated in s. 15 , and burdens men as it does not burden women.  It also offers protection to young females which it does not offer to young males.  Section 146(1)  does not constitute an "affirmative action program" within the meaning of s. 15(2)  of the Charter  and it is not immunized from scrutiny under s. 1  of the Charter .

 


Section 146(1) of the Code is justified under s. 1  of the Charter .  First the protection of female children from the harms that may result from premature sexual intercourse and pregnancy and the protection of society from the impact of the social problems which sexual intercourse with children may produce is a legislative objective of sufficient importance to justify overriding a constitutionally protected right.  Second, the means chosen to effect the objective are reasonable and demonstrably justified in a free and democratic society.  There is a rational connection between the imposition of absolute liability in s. 146(1)  and its objective.  The imposition of absolute liability, which eliminates the defences of reasonable belief as to age and of due diligence, has an additional deterrent effect on men contemplating intercourse with young girls.  The infringement does not extend beyond what is reasonably necessary to achieve the objective.  Finally, with respect to s. 7 , the infringement on the freedom imposed by s. 146(1) of the Code is not unduly draconian, considering the great harms to which the section is directed.  The seriousness of the problems addressed by s. 146(1)  and the lack of an alternative way of dealing with them as effectively as by a provision which leaves no defence based on ignorance of the victim's age, coupled with the fact that the lack of mens rea in s. 146(1)  is less intrusive of the accused's rights than is the case in other absolute liability offences, lead to the conclusion that the intrusion on the accused's right not to be convicted in the absence of a guilty mind represented by s. 146(1)  is reasonable and justifiable.  With respect to s. 15 , the means represented by s. 146(1)  are also proportionate and justified when weighed against the seriousness of the infringement of the rights of equality of accused persons and victims.  The singling out of males as the only offenders is justified given the fact that only males can cause pregnancies, one of the chief evils addressed by s. 146(1) .  The protection of female children to the exclusion of male children may be justified on the same ground.

 

Cases Cited

 

By Wilson J.

 

DisapprovedR. v. Ferguson (1987), 16 B.C.L.R. (2d) 273; consideredR. v. Stevens, [1988] 1 S.C.R. 1153; referred toR. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Oakes, [1986] 1 S.C.R. 103; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Groombridge (1836), 7 Car. & P. 581, 173 E.R. 256; R. v. Waite, [1892] 2 Q.B. 600.

 

By McLachlin J. (dissenting)

 


R. v. Ferguson (1987), 16 B.C.L.R. (2d) 273;  Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486;  R. v. Vaillancourt, [1987] 2 S.C.R. 636;  Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143;  R. v. Turpin, [1989] 1 S.C.R. 1296;  United States v. Carolene Products Co., 304 U.S. 144 (1938); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re MacVicar and Superintendent of Family and Child Services (1986), 34 D.L.R. (4th) 488; R. v. Oakes, [1986] 1 S.C.R. 103;  Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981); R. v. Morgentaler, [1988] 1 S.C.R. 30; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.

 

Statutes and Regulations Cited

 

Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 2.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 15 , 28 , 33 .

 

Constitution Act, 1982 , s. 52(1) .

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 3(6), 140 [rep. & sub. 1980‑81‑82‑83, c. 125, s. 5], 146(1) [am. 1972, c. 13, s. 70; rep. & sub. 1987, c. 24, s. 2], 147 [rep. & sub. 1980‑81‑82‑83, c. 125, s. 7 ; rep. & sub. 1987, c. 24, s. 2], 155, 663 [am. 1972, c. 13, s. 58; am. 1974‑75‑76, c. 93, s. 81].

 

Criminal Code, R.S.C., 1985, c. C‑46 , ss. 150.1(4) , 151 , 152 .

 

Authors Cited

 

Blackstone, Sir William.  Commentaries on the Laws of England.  Book IV.  By Christian et al.  New York:  W. E. Dean, 1846.

 

Canada, Law Reform Commission.  Criminal Law:  Sexual Offences (Working Paper 22).  Ottawa:  Minister of Supply and Services Canada, 1978.

 

Coke, Sir Edward.  The Third Part of the Institutes of the Laws of England.  London:  Clarke, 1817.

 

Howard, Colin.  "The Protection of Principle Under a Criminal Code " (1962), 25 M.L.R. 190.

 


Kenny, Courtney Stanhope.  Kenny's Outlines of Criminal Law, 19th ed.  By J. W. Cecil Turner.  Cambridge:  University Press, 1966.

 

MacNamara, Donal E. J. and Edward Sagarin.  Sex, Crime, and the Law.  New York:  Free Press, 1977.

 

Raymond, Paul E.  "The Origin and Rise of Moral Liability in Anglo‑Saxon Criminal Law" (1936), 15 Or. L. Rev. 93.

 

Stroud, Douglas Aikenhead.  Mens Rea.  London:  Sweet & Maxwell, 1914.

 

APPEAL from a judgment of the Ontario Court of Appeal (1988), 25 O.A.C. 43, 40 C.C.C. (3d) 193 (sub nom. R. v. Boyle), allowing the Crown's appeal from a decision of Graham Prov. Ct. J. quashing the indictment against appellant Hess.  Appeal allowed, Gonthier and McLachlin JJ. dissenting.

 

APPEAL from a judgment of the Manitoba Court of Appeal (1989), 57 Man. R. (2d) 267, [1989] 3 W.W.R. 646, dismissing appellant Nguyen's appeal from his conviction by Kroft J.  Appeal allowed, Gonthier and McLachlin JJ. dissenting.

 

Henry S. Brown, for the appellant Hess.

 

Stanley Nozick, for the appellant Nguyen.

 

Gregory J. Fitch, Shawn Greenberg and Marva Smith, for the respondent.

 

//Wilson J.//


The judgment of Lamer C.J. and Wilson, La Forest and L'Heureux-Dubé JJ. was delivered by

 

WILSON J. -- I have had the advantage of reading the reasons of my colleague Justice McLachlin.  While I agree that s. 146(1)  of the Criminal Code  of Canada (as it read in May, 1985) infringes s. 7  of the Canadian Charter of Rights and Freedoms , in my view the impugned provision is not saved by s. 1  of the Charter .   I am also of the view that s. 146(1)  does not trigger s. 15(1)  of the Charter .

 

For ease of reference I reproduce here the provisions of the Code (as they were numbered in May, 1985) and the Charter  that are relevant to these appeals.  Sections 3(6), 140, 146(1), 147 of the Code provide:

 

3. . . .

 

(6) For the purposes of this Act, sexual intercourse is complete upon penetration to even the slightest degree, notwithstanding that seed is not emitted.

 

140. Where an accused is charged with an offence under section 146 in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge.

 

146. (1) Every male person who has sexual intercourse with a female person who

 

(a) is not his wife, and

 

(b) is under the age of fourteen years,


whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.

 

147. No male person shall be deemed to commit an offence under section 146 or 150 while he is under the age of fourteen years.

 

Sections 1 , 7 , 15  and 28  of the Charter  provide:

 

1. The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

28. Notwithstanding anything in this Charter , the rights and freedoms referred to in it are guaranteed equally to male and female persons.

 

Section 7 

 


In my view, one cannot properly assess the justifiability of measures that violate constitutional rights without some appreciation of the way in which those rights are violated.  I therefore begin with an examination of the reasons why s. 146(1) of the Code infringes the right to liberty enshrined in s. 7  of the Charter .

 

I have already had occasion to consider s. 146(1) of the Code in light of s. 7  of the Charter : see R. v. Stevens, [1988] 1 S.C.R. 1153, at pp. 1174-84 (Justices Lamer and L'Heureux-Dubé concurring).  While the majority of this Court in Stevens held that there was no need to consider whether the provision violated s. 7  because the Charter  could not be invoked with respect to an offence that had taken place prior to the enactment of the Charter , it was my view that s. 146(1)  was fatally flawed.

 


Section 146(1) of the Code makes it an indictable offence punishable by a maximum of life imprisonment for a man to have sexual intercourse with a female under the age of fourteen who is not his wife.  The provision expressly removes the defence that the accused bona fide believed that the female was fourteen years of age or older.  An accused may not resort to the defence of mistake of fact, a defence which the principles set out in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, and Pappajohn v. The Queen, [1980] 2 S.C.R. 120, make clear would normally be available.  These cases provide that absent a legislative decision to eliminate the mens rea requirement, where one is dealing with a "true" criminal offence as opposed to a "public welfare" offence of the kind seen in Sault Ste. Marie, the Crown must prove mens rea (i.e. "some positive state of mind such as intent, knowledge or recklessness") either by an inference from the nature of the act committed or by additional evidence (per Justice Dickson (as he then was) in Sault Ste. Marie, supra, at p. 1325).

 

In the appeals that are now before us we face a situation in which, even although an accused may in all honesty have believed that he was having sexual intercourse with a female who was fourteen years of age or older, he is nonetheless subject to the possibility of life imprisonment once the Crown has established that, as a matter of fact, he had sexual intercourse with a female who was under fourteen years of age.  As McLachlin J. puts it, under this provision "a person who is mentally innocent of the offence -- who has no mens rea with respect to an essential element of the offence -- may be convicted and sent to prison".

 

That the provision may deprive an accused of his right to liberty is obvious: the accused faces the possibility of life imprisonment.  In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515, Lamer J. explained:

 

Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment.

 

But does the deprivation of an accused's right to liberty take place in a manner that fails to accord with the principles of fundamental justice?

 


In Stevens, supra, at p. 1175, I considered the proposition that it is a principle of fundamental justice that a criminal offence with a maximum penalty of life imprisonment must have a mens rea component.  I noted that in Re B.C. Motor Vehicle Act, supra, at p. 513, Lamer J., writing for the majority, had stated:

 

It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law. It is so old that its first enunciation was in Latin actus non facit reum nisi mens sit rea.

 

Lamer J. pointed out that Dickson J. writing for the Court in R. v. Sault Ste. Marie, supra, had stated that "there is a generally held revulsion against punishment of the morally innocent" (p. 1310).

 

I then turned to this Court's decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636, where Lamer J., writing for the majority, found that s. 7  of the Charter  had elevated the requirement of mens rea from a presumption of statutory interpretation to a constitutionally mandated element of a criminal offence.  I noted that Lamer J. had stated, at p. 652:

 


In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction.  [Emphasis in original.]

 

I concluded my analysis in Stevens by emphasizing that s. 146(1) of the Code infringed s. 7  of the Charter  because s. 7  "prohibits the existence of offences that are punishable by imprisonment and that do not allow the accused as a minimum a due diligence defence" (p. 1177).

 

Nothing about the appeals that are currently before this Court leads me to reach a different conclusion.  On the contrary, it seems to me particularly important to reiterate that long before the Charter  was enacted our system of law had a profound commitment to the principle that the innocent should not be punished.  As Dickson J. (as he then was) explained in Pappajohn, supra, at p. 138:

 

There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment, unless the commission of the crime was voluntarily directed by a willing mind.

 

Even the most cursory review of the history of the doctrine of mens rea confirms this observation and reveals that the doctrine is an integral and indispensable feature of our criminal law.  In Kenny's Outlines of Criminal Law (19th ed. 1966), at p. 7, the author observes that this was not always so:

 


There is evidence that throughout Europe in the remote past acts which caused serious harm were supposed to bring about the infliction upon the people of some calamitous punishment by the gods. In such circumstances severe sufferings were inflicted upon the offender in order to placate the outraged deity.

 

But Kenny explains that with time it was recognized that it was unfair and inappropriate to impose punishment in the absence of an element of moral blame.  There arose "the ethical conception that it was not proper to punish a man criminally unless he had known that he was doing wrong" (Kenny, op. cit., at p. 13).  Others have confirmed this account.  For example, P. E. Raymond concludes his study "The Origin and Rise of Moral Liability in Anglo-Saxon Criminal Law", 15 Or. L. Rev. 93 (1936), at p. 117, with the following passage:

 

As we reach the end of the Anglo-Saxon period, which cannot be exactly fixed but is somewhere around 1100, we find the notion of moral liability well established in the criminal law, although the development of it was to continue throughout the centuries and even into the twentieth; for we still have the notion of absolute liability in certain cases.

 

By the seventeenth century the doctrine of mens rea was sufficiently well developed that Coke could affirm "Et actus non facit reum, nisi mens sit rea" (The Third Part of the Institutes of the Laws of England (1817), at p. 6).  Two hundred years later, Blackstone would reiterate this proposition:

 

And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all.  So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

 

(Commentaries on the Laws of England (1846), Book IV, at p. 21.)


And by the early part of this century, treatises on the subject took for granted the proposition that the doctrine of mens rea played an indispensable role in the criminal law.  Stroud, for example, stated:

 

A crime can be committed only where a person, disobeying the law by act or omission, either knows that his conduct is in contravention of the law, or would have known that fact if he had given to his conduct, and to the circumstances, that degree of attention which the law requires, and which he is capable of giving.

 

(Mens Rea (1914), at pp. 10-11.)

 

More recently, the doctrine of mens rea has been described as "[o]ne of the most desirable prerequisites for criminal responsibility in any civilised country" (see: Howard, "The Protection of Principle Under a Criminal Code " (1962), 25 M.L.R. 190, at p. 190).

 


In my view, the history of the doctrine of mens rea shows a gradual move away from a purely retributive conception of punishment, where the law sought to pay back the moral evil done without regard for the reasons why the actor committed the prohibited act, to a conception of punishment that is not only sensitive to the injustice involved in punishing those who are mentally innocent, but also takes account of the fact that punishment will not act as an effective deterrent if persons are punished who did not know or could not have known that they were committing an offence.  The doctrine of mens rea reflects the conviction that a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committing the prohibited act if, as Stroud put it, "he had given to his conduct, and to the circumstances, that degree of attention which the law requires, and which he is capable of giving".

 

Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a "mentally innocent" person is to inflict a grave injury on that person's dignity and sense of worth.  Where that person's beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the state's pronouncement that he must automatically be incarcerated for having done the prohibited act, that person is treated as little more than a means to an end.  That person is in essence told that because of an overriding social or moral objective he must lose his freedom even although he took all reasonable precautions to ensure that no offence was committed.

 

Prior to the Charter , Parliament had to use express statutory language in order to displace the requirement that the prosecutor prove mens rea.  With the advent of the Charter , Parliament must now be prepared to show that a provision that purports to make it unnecessary for the Crown to prove mens rea and that does not provide an accused, at a minimum, with a due diligence defence is a reasonable limit that can be demonstrably justified in a free and democratic society.  I therefore turn to s. 1  of the Charter .

 

Section 1 

 


The respondents submit that s. 146(1) of the Code is justified under s. 1  of the Charter  as a reasonable limit on an accused's s. 7  rights.  They draw extensively on the decision of the British Columbia Court of Appeal in R. v. Ferguson (1987), 16 B.C.L.R. (2d) 273, where the majority of the court (McLachlin J.A. (as she then was) with Taggart J.A. concurring) found that s. 146(1)  was saved by s. 1  and the minority (Anderson J.A.) found that it was not.  In Stevens I expressed the view that the majority's conclusion in Ferguson was in error.  However, in view of the position that McLachlin J. takes with respect to the appeals now before us, I think it important to deal with the issues raised under s. 1  in some detail.  I therefore turn to the question whether s. 146(1)  meets the tests laid down by this Court in R. v. Oakes, [1986] 1 S.C.R. 103.

 

(i) The Legislative Objective

 


The respondents submit that the objective of s. 146(1)  is, firstly, to protect female children from the harms that may result from premature sexual intercourse and pregnancy and, secondly, to protect society from the social problems that sexual intercourse with children may produce.  Children, we are told, may suffer grave physical and emotional harm as a result of sexual intercourse at such an early age.  They are ill-equipped to deal with the consequences of pregnancy.  They must be protected from exploitation by those who seek to use them for prostitution.  Moreover, it is society that must bear the increased medical and social costs and decreased productivity that result from juvenile pregnancies.  Society must also bear the costs of prostitution and the respondents contend that the impugned provision is aimed at combatting such prostitution by prohibiting sexual activity with young girls.

 

I agree that s. 146(1)  is designed to protect female children from premature sexual intercourse and that this is a pressing and substantial concern.  Very young girls who are made to engage in sexual intercourse may suffer grave physical harm.  No‑one can doubt that they may suffer permanent psychological harm as a result of sexual intercourse at an unnaturally early age.  The first test in Oakes is therefore met.  While it seems to me that the provision is largely designed to deal with the kind of immediate physical and emotional harm that a very young girl may experience as a result of premature sexual intercourse, I do not doubt that it was also partly designed to protect slightly older children who are ill-equipped to cope with pregnancy.  I would add that while I do not disagree that society suffers when it is forced to cope with child pregnancies, in my view the primary objective of the impugned provision is to protect children from premature sexual intercourse.

 


With respect to the suggestion that the provision is also designed to address the problem of child prostitution, I must confess that I am far from persuaded that the provision was directed to this problem.  The provision does not seek to penalize the sale of sex for money.  Indeed, it does not even refer to prostitution.  While it will obviously be no defence to an accused charged under s. 146(1)  that the complainant was a prostitute who wished to exchange sex for money and that she therefore consented to sexual intercourse, in my view the provision's focus is firmly on the protection of young females from premature sexual intercourse rather than on the elimination of child prostitution.  This is not to say that the problems the provision addresses are not as serious as child prostitution. They clearly are.  It is simply to say that the focus of the provision is somewhat narrower than the one suggested by the respondents.

 

(ii) Rational Connection

 

The next question under Oakes is whether s. 146(1)  is rationally connected to the concern to protect young females from premature sexual intercourse.  I believe that it is.  The creation of an absolute liability offence for sexual intercourse with a female under fourteen years of age is obviously one way to deal with the problems that young females may experience as a result of premature sexual intercourse.  Moreover, it seems to me that if the legislature is of the view that children under a given age are not in a position to make an informed decision about whether to expose themselves to the hazards of premature sexual intercourse, then it is logical for it to eliminate the defence of consent.  As one set of authors explains:

 

. . . a minor, it is reasoned, no matter how willing or eager, has not given consent because she is below the age at which she has the legal right or the social maturity to offer it.

 

(MacNamara and Sagarin, Sex, Crime, and the Law (1977), at p. 80.)

 


In connection with the question of rational connection the respondents also raise an argument about deterrence that in my view is more appropriately addressed in the context of whether the provision impairs the accused's right as little as possible and whether the severity of the violation of the right is proportionate to the legislative objective.  In particular, the respondents suggest that absolute liability has been imposed because, if the defence of reasonable belief were available, a man could escape conviction by saying that he believed the girl to be older than fourteen.  Similarly, they contend that were a defence of due diligence available, this would leave open the possibility that the girl would lie as to her age.  Section 146(1)  therefore puts men who are contemplating sexual intercourse with a girl who might be under fourteen years of age on alert.  It ensures that they will not take a chance.  I will address this deterrence argument under the next heading.

 

(iii) Minimal Impairment and Proportionality

 

When the respondents turn to the question whether the impugned provision impairs the right as little as possible, they assert that the defence of due diligence or reasonable belief would not provide as effective a deterrent to men who might wish to engage in sexual intercourse with a female under fourteen as the removal of all defences based on the accused's lack of knowledge of the victim's age.  They also submit that the fact that Parliament has chosen to replace s. 146(1)  with a provision that allows for a due diligence defence does not mean that one cannot justify s. 146(1)  as a reasonable limit on s. 7  of the Charter .  I note that McLachlin J. not only accepts these submissions but that she is also of the view that in those instances where an accused is truly mentally innocent this factor may be taken into account in the sentence: "if the court is persuaded that the accused was truly morally blameless, he may be set free: see s. 663  (now s. 737 ) of the Criminal Code ".

 


I think it useful to consider these arguments under three separate headings.

 

(a) The Deterrence Argument

 

The respondents place a great deal of weight on arguments about deterrence in their analysis of whether the impugned provision is rationally connected to the legislative objective and in their submissions with respect to the proportionality test set out in Oakes.  In Stevens, I expressed the view that the premise on which the deterrence arguments are based is not a strong one since it assumes that before having sexual intercourse with a young girl the accused, including a teen-aged accused, will in fact address his mind to a fairly obscure provision of the Code.

 

But if I am wrong in this, it seems to me that any deterrence value that s. 146(1)  might have would only protect a narrow sub-set of the group that s. 146(1)  addresses.  Whatever deterrence value the fear of making a mistake might have would only protect that group of young females close enough to the age of fourteen that a mistake as to whether they were under or over fourteen was a realistic possibility.  In Stevens, supra, at p. 1182, I emphasized that "[a]ny hypothetical deterrence, therefore, will be limited to borderline cases".

 


More importantly, the deterrent effect of the rule cannot readily be documented and the respondents have not submitted any evidence to support their deterrence argument.  Where one is dealing with the potential for life imprisonment it is not good enough, in my view, to rely on intuition and speculation about the potential deterrent effect of an absolute liability offence.  We need concrete and persuasive evidence to support the argument.  I think Dickson J. put the point well in R. v. Sault Ste. Marie, supra, at p. 1311, when he said:

 

Arguments of greater force are advanced against absolute liability. The most telling is that it violates fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of breach?  If he has exercised care and skill, will conviction have a deterrent effect upon him or others?  Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others?  These are among the questions asked. [Emphasis added.]

 

The respondents contend that all that a person need do to avoid the risk of conviction is to refrain from having sex with a young girl unless he is sure that she is over fourteen.  But this begs the question: what if he is sure that she is over fourteen but turns out to be wrong?  This argument boils down to the proposition that all that a person who has made a mistake of fact needs to do to avoid the risk of conviction is to make sure that he is not making a mistake of fact.  The argument would appear to be somewhat circular.

 


This point leads me to another, more fundamental, problem with the deterrence argument, one that Dickson J. identified in Sault Ste. Marie.  I noted in connection with my s. 7  analysis that the criminal law has come to recognize that punishing the mentally innocent with a view to advancing particular objectives is fundamentally unfair.  It is to use the innocent as a means to an end.  While utilitarian reasoning may at one time have been acceptable, it is my view that when we are dealing with the potential for life imprisonment it has no place in a free and democratic society.  Thus, even if there were some substance to the premise on which the deterrence argument is based, the argument would still, in my opinion, lead to a fundamentally unfair state of affairs.

 

(b) Sentencing

 

Justice McLachlin recognizes that there is something troubling about subjecting someone who has made a genuine mistake of fact to life imprisonment.  She feels that mental innocence may be taken into account when sentencing the accused.  It seems to me that her discomfort with the idea of incarcerating the mentally innocent for as extended a period as the mentally guilty is entirely natural.  But in my view, rather than work in favour of s. 146(1) , this serves to highlight the weaknesses of arguments upholding the linking of life imprisonment to an absolute liability offence.  Indeed, it seems to me that my colleague implicitly accepts that there should be some correlation between moral blame and punishment.

 


But one cannot leave questions of mental innocence to the sentencing process.  The legislature must take into account the implications of the distinction between the mentally innocent and the mentally guilty when drafting legislation.  Any flaws in the provision cannot be justified by arguments that ask us to have faith that the prosecutor and judge will take these flaws into account when deciding how the accused will be punished.  Reliance on prosecutorial or judicial discretion to mitigate the harshness of an unjust law will provide little comfort to the mentally innocent and cannot, in my view, serve to justify a fundamentally unsound provision.

 

(c) Section 150.1(4)  of the Criminal Code, R.S.C., 1985, c. C-46 

 

In 1987, Parliament repealed s. 146(1)  and put in place a series of measures that include a provision that allows a person who would previously have been charged under s. 146(1)  the defence of due diligence.  Sections 151 and 152 of the current Code create the new substantive offences of sexual interference and invitation to sexual touching.  Both of these provisions apply to sexual conduct with a person under the age of fourteen.  Section 150.1(4)  limits the range of defences available to an accused charged under these sections, removing the defence of consent but allowing a due diligence defence:

 

150.1 . . .

 

(4) It is not a defence to a charge under section 151  or 152 , subsection 160(3)  or 173(2) , or section 271 , 272  or 273  that the accused believed that the complainant was fourteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. [Emphasis added.]

 


I observed in Stevens that there could be no doubt that this provision constitutes less of an infringement on an accused's s. 7  rights than s. 146(1) .  It was my view that Parliament had concluded that society's needs can in fact be served by a less stringent provision.  McLachlin J. suggests that Parliament's objective may have changed; ss. 151 and 152 of the new Code may not be directed at the same evil as was s. 146(1) .  I cannot agree.  Sections 151  and 152  seek to protect young people from a broad range of sexual activity.  But these provisions continue to protect young females from the physical and emotional trauma of premature sexual intercourse.  The sections simply provide this protection through expansive language that addresses a broad range of sexual activity that might harm persons under fourteen years of age.  Consequently, it remains my view that Parliament has concluded that it can effect its objective of protecting young females from the undesirable consequences of premature sexual intercourse in a manner that does not restrict an accused's right as much as s. 146(1) .

 

I am therefore of the view that s. 146(1)  does not satisfy the proportionality test set out in Oakes.  The potential benefits flowing from the retention of absolute liability are far too speculative to be able to justify a provision that envisages the possibility of life imprisonment for one who is mentally innocent.  At a minimum the provision must provide for a defence of due diligence.

 


Finally, it seems to me important to address McLachlin J.'s observation that "to hold that s. 1  can never as a matter of law be applicable to Charter  rights falling within certain categories is to rewrite the Charter ".  I agree that one cannot say that s. 1  is not relevant or "applicable" to the rights and freedoms that the Charter  protects.  Indeed, whenever legislation that is not insulated from judicial review by s. 33  of the Charter  infringes Charter  rights or freedoms, the government is fully entitled to try to justify the legislation under s. 1  of the Charter .  But section 1  of the Charter  is not itself devoid of values.  It stipulates that the impugned provisions must be "demonstrably justified in a free and democratic society".  This term cannot be read in such a way as to give licence to governments to infringe rights in any way they please.  The values of a free and democratic society must be respected.  Whether or not they have been respected must be decided on a case by case basis.  Far from rewriting the Charter  this approach is entirely consistent with the Charter .  I think Dickson C.J. put it well in Oakes, supra, at p. 136:

 

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter  and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.  [Emphasis added.]

 

Section 15(1)  of the Charter 

 

In my view, one can dispose of these appeals under s. 7  of the Charter . However, my colleague was required to address s. 15(1)  of the Charter  since in her opinion the impugned provision is a reasonable limit on s. 7 .  While it is not, strictly speaking, necessary for me to consider s. 15(1)  of the Charter , it may be useful to address the question whether in addition to a s. 7  violation there is also a s. 15(1)  violation, particularly since I cannot agree with McLachlin J.'s conclusion that s. 146(1) of the Code infringes s. 15(1)  of the Charter .

 


The appellants Hess and Nguyen submit that s. 146(1) of the Code creates a distinction that violates s. 15(1)  of the Charter .  They say that s. 146(1)  distinguishes between potential accused on the basis of a ground enumerated in s. 15(1)  of the Charter  in that only men may be charged under the provision.  They point out, moreover, that the provision clearly envisages that only females may be complainants.  The question arises therefore whether it is open to the legislature to create an offence that applies only to accused of one sex and to victims of one sex.

 

In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, McIntyre J. stressed that it was not every difference in treatment that would result in inequality and that it was not every distinction or differentiation in treatment that would give rise to discrimination and so violate the equality guarantee in s. 15(1)  of the Charter .  Similarly, in R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1332, I observed that in determining whether there was an infringement of s. 15(1)  of the Charter  it was important to look not only at the impugned legislation which had created the challenged distinction but also at the larger social, political and legal context because "[i]f the larger context is not examined, the s. 15  analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation" (p. 1332).  In other words, we must not assume that simply because a provision addresses a group that is defined by reference to a characteristic that is enumerated in s. 15(1)  of the Charter  we are automatically faced with an infringement of s. 15(1) .  There must also be a denial of an equality right that results in discrimination.

 


In these appeals we are asked to consider when a distinction drawn on the basis of sex may legitimately be made and when it may not.  In the context of the criminal law it seems to me that the answer to this question will depend on the nature of the offence in issue.  If the impugned provision creates an offence that can, as a matter of fact, be committed by either sex but goes on to specify that it is only an offence when committed by one sex, then there may well be an infringement of s. 15(1)  that would have to be justified under s. 1  of the Charter .  Thus, were the legislature suddenly to decide that first degree murder would only be an offence when committed by a man, one would face an illegitimate distinction that would trigger s. 15(1) .  It would place a serious burden on males that was not imposed on females when there was no reason related to sex for imposing such a burden.

 

But if the impugned provision creates an offence that involves acts which, as a matter of fact, can only be committed by one sex, then it is not obvious that s. 15(1)  of the Charter  is infringed.  In such a case there may well be a reason related to sex for creating an offence that can only be committed by one sex.  I am, of course, fully aware of the dangers inherent in arguments that seek to justify particular distinctions on the basis of alleged sex-related factors.  All too often arguments of this kind have been used to justify subtle and sometimes not so subtle forms of discrimination.  They are tied up with popular yet ill-conceived notions about a given sex's strengths and weaknesses or abilities and disabilities.

 


Nevertheless, there are certain biological realities that one cannot ignore and that may legitimately shape the definition of particular offences.  In my view, the fact that the legislature has defined an offence in relation to these realities will not necessarily trigger s. 15(1)  of the Charter .  I think few would venture to suggest that a provision proscribing self-induced abortion could be characterized as discriminatory because it did not apply to men.  Such an argument would be absurd.  In my view, s. 15(1)  does not prevent the creation of an offence which, as a matter of biological fact, can only be committed by one of the sexes because of the unique nature of the acts that are proscribed.

 

We must therefore be extremely careful not to engage in an overly simple comparison of men who are charged under s. 146(1) of the Code with women who engage in intercourse with males to whom they are not married who are under fourteen years of age.  It is exactly this kind of rigid formalism that the Court in Andrews and Turpin urged that we avoid.  It seems to me that the first question that we face in these appeals is whether s. 146(1)  addresses an offence that as a matter of biological fact can only be committed by males.

 

I note that s. 3(6) of the Code states:

 

3. . . .

 

(6) For the purposes of this Act, sexual intercourse is complete upon penetration to even the slightest degree, notwithstanding that seed is not emitted.

 


In addition, s. 147 states that only males over fourteen may commit the offence envisaged in s. 146, a provision that reflects the common law's rather artificial assumption that boys under 14 are not physically capable of sexual intercourse: see R. v. Groombridge (1836), 7 Car. & P. 581, 173 E.R. 256 and R. v. Waite, [1892] 2 Q.B. 600.  When s. 146(1)  is read in light of s. 147 and s. 3(6), it becomes clear that the legislature was of the opinion that, because only males over a certain age were physically capable of penetrating another person, only they needed to be listed as potential accused.  While one might question whether fourteen years of age is the proper place to draw the line between males who should or should not be charged with the offence, nonetheless I think it clear that only males over a certain age are in fact capable of penetrating another person, at least in the sense of the term penetration that the Code is obviously concerned with.  In my view, we are therefore dealing with an offence that involves an act that as a matter of biological fact only men over a certain age are capable of committing.  And given that only men may be the penetrators, it is as absurd to suggest that the provision discriminates against males because it does not include women in the category of potential offenders as it is to suggest that a provision that prohibits self-induced abortion is discriminatory because it does not include men among the potential class of offenders.

 


This is not to say that some older women do not on occasion seek to have sex with males under fourteen years of age, for they clearly do.  But it seems to me that once one accepts that a female does not commit a physical act that can be readily equated with the one that a male commits under s. 146(1) , then whether or not a female should be punished for the act she can and does commit is a policy matter best left to the legislature.  In my view, it is not this Court's role under s. 15(1)  of the Charter  to decide whether a female who chooses to have intercourse with a boy under fourteen merits the same societal disapprobation as a male who has intercourse with a girl under fourteen.  These issues go to the heart of a society's code of sexual morality and are, in my view, properly left for resolution to Parliament.

 

The appellants also submit that s. 146(1) of the Code discriminates against males because males under the age of fourteen are denied the same protection as s. 146(1)  affords to females under the age of fourteen.  Only a young female can obtain the conviction of her seducer under this provision.  Once again, however, I think it important to bear in mind that the legislature has chosen to punish a male who engages in a form of penetration to which only a male and a female can be parties.  The legislature has concluded that sodomy or buggery are forms of penetration that should be dealt with separately: see, for example, s. 155 of the Code.  Once again we are faced with distinctions aimed at biologically different acts that go to the heart of society's morality and involve considerations of policy.  They are, in my view, best left to the legislature.

 


This is not to say that a very young male who is sodomized and a young female who has sexual intercourse are not equally likely to suffer physical and psychological harm as a result of these experiences.  It is to say only that a provision is not discriminatory within the meaning of s. 15(1)  simply because it addresses one of these acts and not the other.  Any injustice that might arise if the Code failed to address one or the other of these acts would lie outside the impugned section.  It would not arise because the legislature had failed to treat the victims of two different biological acts in the same way within the same section. Rather, it would arise because the legislature had failed entirely to provide protection anywhere in the Code for a class of potential victims who are also subjected to an experience that can be extremely traumatic.  This may be an unjust state of affairs but it is not the special form of injustice that s. 15(1)  is designed to address.  Nor do I think it would be appropriate for this Court to seek to correct injustices arising from the absence of particular offences from the Code by using s. 15(1)  to create an offence which the legislature has not chosen to create.  There may be sound policy reasons for protecting one group and not the other and these reasons may be based on the biological distinctions between them.  We need not, however, explore these questions in further detail because, at the relevant time, s. 155 of the Code stipulated that every one who committed buggery was guilty of an indictable offence and was liable to imprisonment for fourteen years.

 

I am therefore of the view that s. 146(1)  does not infringe s. 15(1)  of the Charter .

 

Section 28 

 


The appellants suggest that s. 28  of the Charter  is relevant to these appeals. The section states that the rights and freedoms referred to in the Charter  "are guaranteed equally to male and female persons".  In my view, this provision does not prevent the legislature from creating an offence that as a matter of biological fact can only be committed by one sex.  But it does mean that it is not open to the legislature to deny an accused who is charged with such an offence rights and freedoms guaranteed to all persons under the Charter .

 

In the context of these appeals I think it clear that a male is as entitled to the protection of s. 7  as a female.  It is not open to the government to suggest that a person should receive less than full Charter  protection on account of his or her sex.  Moreover, the government will not be able to justify an infringement of s. 7  under s. 1  of the Charter  on the basis that because of an individual's sex he or she is not entitled to the same degree of Charter  protection as persons of the other sex or that because of his or her sex the Charter  violation is less serious.  The justification for the infringement of a Charter  right will have to be linked to considerations other than the sex of the party that has established an infringement of his or her Charter  right.  In these appeals, for example, one could not seek to justify the infringement of s. 7  by pointing to the accused's sex and by saying that because he is a man he is not entitled to the full protection of s. 7 .  It is no more open to the government to make this argument than it would be open to it to suggest that a woman procuring an abortion was not entitled to the full protection of s. 7  because she was a woman.

 


There will, of course, be sex-related factors that may legitimately enter into a proportionality analysis conducted under s. 1  of the Charter .  But such factors will have to be linked to the sex of persons other than the accused, e.g. the fact that the victim can become pregnant. Such an analysis would not seek to justify the infringement of a Charter  right on the simple basis that the accused was of a given sex. Rather, it would point to considerations independent of the accused's sex that might be relevant to an assessment of the justification for restricting the accused's rights.

 

The respondents in these appeals did not suggest that the appellants were not entitled to the protection of s. 7  because they were men.  Indeed, they admitted the s. 7  infringement and sought to justify it by pointing to considerations that were not tied to the sex of the accused. In my view, this was the proper way to proceed, though I am ultimately of the view that the respondents cannot successfully justify the violation of s. 7  under s. 1  of the Charter .

 

The Remedy

 

Section 52(1)  of the Constitution Act, 1982  reads as follows:

 

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

In Stevens, supra, I emphasized at p. 1184 that s. 52(1)  is quite specific in stating that a law found to be inconsistent with the provisions of the Constitution is of no force and effect only to the extent of the inconsistency.  It was my view then and it remains my view that it is appropriate to issue a declaration to the effect that the words in s. 146(1)  "whether or not he believes that she is fourteen years of age or more" are of no force and effect.  The section shorn of its offensive words therefore reads:


146. (1) Every male person who has sexual intercourse with a female person who

 

(a) is not his wife, and

 

(b) is under the age of fourteen years,

 

is guilty of an indictable offence and is liable to imprisonment for life.

 

It was also my view in Stevens that it was appropriate to order a new trial of the accused under the section as amended above.  However, I observed that in light of such factors as the length of time that had elapsed since the events giving rise to the charge and the fact that Mr. Stevens had already served two years of probation, it might be appropriate for the Attorney General to direct a stay of proceedings under s. 508 of the Code as it read at the time.

 

Disposition

 


With respect to Mr. Hess's appeal, I would order a new trial under the section as amended above.  With respect to Mr. Nguyen's appeal, I would quash his conviction and order a  new trial under the section as amended above.  While the respondent in the Nguyen appeal submits that Mr. Nguyen led no evidence that would support a defence of mistake of fact, I do not think that this can justify upholding a conviction under a defective provision of the Code.  Moreover, I note that the appellant Nguyen submitted that the reason that he led no evidence to support such a defence is that he believed that s. 146(1)  removed the defence.  In my view, on the evidence before us this Court is not in a position to assess whether such a defence would or would not have succeeded.

 

I would answer the constitutional questions stated by the Chief Justice of Canada on August 4, 1988 and April 20, 1989 as follows:

 

1.            Does section 146(1)  of the Criminal Code  (as it read in May, 1985) contravene section 7  of the Canadian Charter of Rights and Freedoms  on the ground that the reasonable belief of the accused as to the age of the complainant is irrelevant to the commission of the offence?

 

Answer:  Yes.

 

2.            If the answer to question 1 is in the affirmative, is section 146(1)  of the Criminal Code  (as it read in May, 1985) nevertheless justified pursuant to section 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

Answer: No.

 

3.            Does section 146(1)  of the Criminal Code  (as it read in May, 1985) contravene section 15(1)  of the Canadian Charter of Rights and Freedoms ?

 

Answer: No.

 


4.            If the answer to question 3 is in the affirmative, is section 146(1)  of the Criminal Code  (as it read in May, 1985) nevertheless justified pursuant to section 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

Answer: In view of the answer to question 3, this question need not be answered.

 

//Sopinka J.//

 

The following are the reasons delivered by

 

SOPINKA J. -- I agree with the conclusion reached by Justice Wilson that s. 146(1) of the Criminal Code, R.S.C. 1970, c. C-34, infringes s. 7  of the Canadian Charter of Rights and Freedoms  and that it cannot be saved under s. 1 .  I also agree with her reasons for coming to this conclusion.

 


While the appellants have been partially successful in their attack on s. 146(1)  of the Criminal Code  by virtue of this conclusion, the wider remedy sought by them is to strike out the section in its entirety.  It is therefore necessary to deal with s. 15  of the Charter  to determine whether this section entitles them to this wider remedy.  In this regard I am in agreement with Justice McLachlin that s. 146(1)  does infringe s. 15  but I am of the view that it is saved by s. 1 .  Wilson J. concludes that s. 146(1)  is overbroad because of the inclusion of the words "whether or not he believes that she is fourteen years of age or more".  It follows from her reasons that if these words are struck out, the section can be justified under s. 1  of the Charter  by reference to the relevant factors.  I adopt her reasoning to conclude that with the excision of these words by reason of a violation of s. 7 , the infringement of s. 15  is also justified under s. 1 .  The attack on s. 146(1)  as a whole therefore fails.

 

I would therefore dispose of the appeal as proposed by Wilson J.

 

//McLachlin J.//

 

The reasons of Gonthier and McLachlin JJ. were delivered by

 

MCLACHLIN J. -- These cases raise the issue of whether the offence of sexual intercourse with a female person under the age of fourteen years under s. 146(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now repealed), is unconstitutional.

 

The Facts and Procedural History

 

In neither case are the facts disputed.  The facts and procedural history of each case may be summarized as follows:

 

R. v. Hess

 


The appellant Victor John Hess was charged in 1985 under s. 146(1)  of the Criminal Code .  He initially entered a plea of guilty, but was permitted to change his plea when other cases raised doubts as to the constitutionality of the section.  By way of motion after plea, he raised the unconstitutionality of the section as a defence, admitting for the purposes of the motion that an act of sexual intercourse had taken place and that the complainant was under the age of fourteen years and the appellant was over the age of eighteen years.

 

Graham Prov. Ct. J. allowed the motion, on the grounds that s. 146(1)  infringed s. 15  of the Canadian Charter of Rights and Freedoms  by providing protection to females but not to males under fourteen years of age. He was of the view that it had not been demonstrated that the infringement was justified under s. 1 , and that although biological differences between males and females might once have been grounds for affording greater protection to the latter, it was doubtful that this could be justified in these times.

 


The Ontario Court of Appeal allowed the Crown's appeal, in a judgment rendered February 3, 1988, and ordered a new trial: 25 O.A.C. 43, 40 C.C.C. (3d) 193.   Dubin J.A., writing for the Court, first noted that the impugned legislation had been repealed. He then considered whether a contravention of s. 15  had been made out. In his view, the fact that young males under fourteen were not given the same protection as young females under fourteen did not violate s. 15 . Under that section, it was necessary to determine "whether the law was reasonable or fair, having regard to its purpose and effect". Dubin J.A., noting the grave consequences which result to the victim and society and relying on the British Columbia Court of Appeal's decision in R. v. Ferguson (1987), 16 B.C.L.R. (2d) 273, concluded that it was neither unfair nor irrational for Parliament to have treated sexual intercourse with a female under fourteen as a more serious offence.

 

R. v. Nguyen

 

The appellant Van Hung Nguyen was charged with sexual assault and contravention of s. 146(1) .  At the preliminary hearing, the Crown entered a stay of proceedings on the sexual assault charge, but Nguyen was ordered to stand trial on the second charge.  He brought a preliminary motion challenging the validity of s. 146(1)  on the grounds that it infringed s. 7  and s. 15  of the Charter .  The Court of Queen's Bench dismissed the motion and the trial proceeded.  The evidence established that sexual intercourse had taken place, that the complainant was twelve years old at the time, and that the complainant did not indicate her lack of consent to the appellant because she was too scared.  Nguyen was convicted and sentenced to fifteen months' incarceration.

 


The Manitoba Court of Appeal dismissed Nguyen's appeal: (1989), 57 Man. R. (2d) 267, [1989] 3 W.W.R. 646.   Lyon J.A., writing for the Court, relied on the decision of the Ontario Court of Appeal in Hess, to conclude that there was no violation of s. 15 , as well as the decision of the British Columbia Court of Appeal in R. v. Ferguson to conclude that although s. 146(1)  breached s. 7  of the Charter , that breach was saved by s. 1 .  He noted incidentally that while Ferguson concerned an accused who honestly but mistakenly believed that the complainant was sixteen years old, in the present case there was no suggestion that the appellant was under any misapprehension as to the complainant's age. Leave to appeal was granted by this Court on October 19, 1989, [1989] 2 S.C.R. ix.

 

The Legislation

 

Section 146(1)  of the Criminal Code  provided at the material times as follows:

 

146. (1) Every male person who has sexual intercourse with a female person who

 

(a) is not his wife, and

 

(b) is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.

 

Sections 1 , 7 , 15  and 28  of the Charter  provide:

 

1. The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.


(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

28. Notwithstanding anything in this Charter , the rights and freedoms referred to in it are guaranteed equally to male and female persons.

 

The Issues

 

The appeals raise the following legal questions:

 

1.  Does s. 146(1)  violate s. 7  of the Charter ?

 

2.  Does s. 146(1)  violate s. 15  of the Charter ?

 

3.            If the answer to either of the above questions is affirmative, is s. 146(1)  saved by s. 1  of the Charter ?

 

Analysis

 

1.   Does s. 146(1) of the Criminal Code Violate s. 7  of the Charter ?

 


An essential element of s. 146(1) is that the victim be under the age of fourteen years.  The Crown need not show that the accused knew the victim was less than fourteen.  Nor does his honest belief that the victim was over provide a defence.   Thus a person who is mentally innocent of the offence -- who has no mens rea with respect to an essential element of the offence -- may be convicted and sent to prison.

 

This Court has held that it is a principle of fundamental justice under s. 7  of the Charter  that a law restricting an individual's liberty by means such as imprisonment must have as an essential element that the accused possess a guilty mind, or mens reaRe B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636.  An accused can be convicted under s. 146(1)  although he lacks a guilty mind.  He clearly must intend to have intercourse.  But that is not an offence.  Without wishing to commit the crime or intending to commit the crime of having intercourse with a girl of less than fourteen years, an accused may stand convicted.  It follows from the principles laid down by this Court in Re B.C. Motor Vehicle Act and Vaillancourt that s. 146(1)  violates s. 7  of the Charter .

 

2.  Does s. 146(1) of the Criminal Code Violate s. 15  of the Charter ?

 

It is argued that s. 146(1) violates s. 15  of the Charter  in two ways.

 

The first is that only men can be convicted under s. 146(1).  Men are thus deprived of a benefit or advantage enjoyed by women.

 

The second is that only young women are protected by s. 146(1).  Thus males of fourteen years or less are not given the same benefit as females.


Two requirements must be met to establish infringement of s. 15  of the Charter .  First, an inequality or distinction in the treatment of members of groups must be established.  Second, this distinction must constitute discrimination: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

 

The alleged violations of s. 15  raised in this case both involve distinctions on the basis of sex, one of the categories enumerated in s. 15 .  Thus the first condition for a violation of s. 15  is met.  The question is whether the second requirement, discrimination, is established.

 

This brings us to the question of what constitutes discrimination under the Charter .  This Court has considered the subject in two cases: Andrews v. Law Society of British Columbia, and R. v. Turpin, [1989] 1 S.C.R. 1296.  In view of the suggestion that Turpin may characterize discrimination more restrictively than Andrews, I find it necessary to consider briefly what was said on the matter in each of those cases.

 

Andrews lays down that it is sufficient to establish a violation of s. 15  to show that a distinction is drawn on the enumerated or analogous grounds, and that the distinction results in a burden being placed on the complaining individual or group.  Once this hurdle has been cleared the analysis moves to s. 1 .  Discrimination is defined as follows at pp. 174-75:

 


I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

 

Consideration of factors which may justify or render reasonable the discrimination takes place in s. 1  (at p. 182):

 

. . . any justification, any consideration of the reasonableness of the enactment; indeed, any consideration of factors which could justify the discrimination and support the constitutionality of the impugned enactment would take place under s. 1 .

 

This suggests that once it has been established that men face a burden under s. 146(1) not faced by women, or that females enjoy a benefit not enjoyed by men, the question of whether "the larger context" supports the burden or benefit is a matter for s. 1  of the Charter .

 


Some of the words used in Turpin, on the other hand, may be read as suggesting that discrimination is not established merely by a distinction within s. 15  which imposes a greater burden or confers a greater benefit.  Rather, one should look for a disadvantage peculiar to the "discrete and insular minority" discriminated against, to determine if it suffers disadvantage apart from and independent of the particular legal distinction being challenged. (This phrase, drawn from U.S. law, has had constitutional significance there since its use in a footnote to United States v. Carolene Products Co., 304 U.S. 144 (1938).)  The Court stated in Turpin, per Wilson J. at pp. 1331-33:

 

. . . it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

 

                                                                         . . .

 

In my respectful view, it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427  of the Criminal Code  in all the provinces except Alberta as members of a "discrete and insular minority". I hasten to add that this categorization is not an end in itself but merely one of the analytical tools which are of assistance in determining whether the interest advanced by a particular claimant is the kind of interest s. 15  of the Charter  is designed to protect. It is a means of ensuring that equality rights are given the same kind of broad, purposive interpretation accorded to other Charter  rights. . . .  Differentiating for mode of trial purposes between those accused of s. 427  offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of s. 15  in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society. A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case. . . .  To recognize the claims of the appellants under s. 15  of the Charter  would, in my respectful view, "overshoot the actual purpose of the right or freedom in question" . . . .  [Emphasis added.]

 

This language lends itself to the argument that a distinction against men as compared with women is not discrimination within s. 15  because men cannot claim to be a "discrete and insular minority" and can rarely show disadvantage apart from the provision they are challenging.


On this basis the Attorneys General argue that s. 146(1) is not discriminatory.  Although it distinguishes between men and women, this is not an "irrelevant distinction" because only male offenders having sexual intercourse with female victims can result in one of the major evils to which the legislation is directed, female pregnancy.  Furthermore, men and young boys suffer no disadvantage "apart from and independent of the particular legal distinction being challenged."  Men, it is submitted, are not a "discrete and insular minority" which the Charter  intended to benefit.

 

In my view, these arguments take the interpretation of the language in Turpin further than is justified.  There is no suggestion in that language that men should be excluded from protection under s. 15  because they do not constitute a "discrete and insular minority" disadvantaged independently of the legislation under consideration.  The Court must be taken to have had in mind s. 28  of the Charter , which provides that notwithstanding any other provisions, the rights and freedoms referred to in the Charter  are guaranteed equally to male and female persons.  The Court in Turpin quoted with approval the definition of discrimination in Andrews to which I have referred.  Moreover, the qualified language used in Turpin suggests that the Court viewed the so-called requirement of independent disadvantage not as an absolute requirement for a finding of discrimination, but rather as an element which would be found in many of the cases where discrimination is found.  Thus Wilson J. states that the search for independent disadvantage applies "in most but perhaps not all cases" and says that finding a "discrete and insular minority" is "merely one of the analytical tools which are of assistance".  In my view, the essential requirements for discrimination under s. 15  remain as set forth in Andrews.


Applying that test, I find that s. 146(1) constitutes discrimination under s. 15  of the Charter .   It makes distinctions on the enumerated ground of sex.  It burdens men as it does not burden women.  It offers protection to young females which it does not offer to young males.  It is discriminatory.

 

The Attorney General for Ontario argued that since the accused are not in the category of young unprotected males, they have no standing to raise the second ground upon which it is alleged s. 146(1) discriminates.  The majority of this Court, per Dickson J. (as he then was) took a broad view of standing on constitutional questions in criminal cases in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 313-14:

 

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid.

 

                                                                         . . .

 

It is the nature of the law, not the status of the accused, that is in issue.

 

It follows that any constitutional defect can be raised in the defence of a criminal charge.  This is only just.  A person should not be convicted under an invalid law.  Moreover, in cases like the present, it is difficult to imagine the affected group raising the issue of discrimination.  Only males under fourteen who have suffered emotional difficulties as a result of the law's failure to protect them, as it protects young girls against their seducers, would have a direct interest in raising this point.  It borders on the fictional to suppose such claims would be brought.


Nor can I accept the argument of the Attorney General for Ontario that s. 146(1) is saved by s. 15(2)  of the Charter Subsection 15(2)  is potentially far-reaching in its application.   Interpreted expansively, as the Attorney General suggests, it threatens to circumvent the purpose of s. 1 .  Under s. 15(2)  it must only be shown that the "object" of the legislation was amelioration of conditions of a disadvantaged individual or group, and there is no need to demonstrate that the legislation used proportionate means. I prefer the approach to s. 15(2)  adopted by Huddart L.J.S.C. in Re MacVicar and Superintendent of Family and Child Services, (1986), 34 D.L.R. (4th) 488 (B.C.S.C.), at pp. 502-3:

 

To ensure that the s. 15(1)  guarantee of equal protection and benefit has real effect, s. 15(2)  must be construed as limited to its purpose. It was included in the Charter  to silence the debate that rages elsewhere over the legitimacy of affirmative action. . . .  It was not intended to save from scrutiny all legislation intended to have positive effect. . . .

 

                                                                         . . .

 

If this provision could be saved, little discriminatory legislation could ever be attacked successfully, for almost all positive law has as its stated object the betterment or amelioration of the conditions in our community of a disadvantaged individual or group.

 

It cannot be said in any way that young females benefit from the failure of s. 146(1) to protect young males or to treat male and female offenders similarly.  Section 146(1) does not constitute a true "affirmative action program", in the terms of the marginal note to s. 15(2) .  I would hold that s. 15(2)  does not immunize s. 146(1) from scrutiny under s. 1  of the Charter .

 


I conclude that s. 146(1)  of the Criminal Code  violates s. 15  of the Charter .

 

3.  Are the Violations of ss. 7  and 15  Saved Under s. 1  of the Charter ?

 

(a) Is the Breach of s. 7  Saved by s. 1  of the Charter ?

 

The question is whether, notwithstanding the fact that s. 146(1)  can be characterized as a strict or absolute liability offence, it is "reasonable" and "demonstrably justified in a free and democratic society."

 

Two conditions must be met in order to meet this test: R. v. Oakes, [1986] 1 S.C.R. 103.  First, the objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right.  Second, if such an objective is established, the party invoking s. 1  must show that the means chosen to attain the objective are reasonably and demonstrably justified in a free and democratic society.  To conclude that the means chosen are reasonable and demonstrably justified, the court must be satisfied of three things:

 

1. The measures designed to meet the legislative objective must be rationally connected to the objective;

 

2. the means used should impair as little as possible the right or freedom in question; and,

 


3. there must be proportionality between the effect of the measures which are responsible for limiting the Charter  right and the legislative objective of the limit on those rights.  In effect, this involves balancing the invasion of rights guaranteed by the Charter  against the objective to which the limitation of those rights is directed.

 

It is the objective of the limit which violates the Charter  section rather than the goal of the provision as a whole which is the focus of the analysis under s. 1 .   Only that limit is at issue.

 

The limitation on the accused's rights under s. 7  here in issue is the absolute liability aspect of the offence created by s. 146(1) .  The question is whether the imposition of absolute liability effected by s. 146(1)  of the Criminal Code  is justified.

 

I now turn to the tests proposed in R. v. Oakes.

 

(i) The Objective of the Proposed Limit

 

The question is whether the objective of s. 146(1)  is of sufficient importance that it is capable, provided the appropriate means are used, of overriding a Charter  right.

 


Section 146(1)  represents the Canadian equivalent of a provision which is known throughout the western democratic world.  The offence has long been part of the criminal law of England which we in Canada inherited.  It has survived innumerable constitutional challenges in the United States:  see Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), and authorities cited therein.  It is not an exaggeration to say that the offence of "statutory rape", as it is commonly referred to, is embedded in our social consciousness.

 

These facts attest to the importance of the objective served by the offence.  It has long been acknowledged that the imposition of absolute liability and the inequality inherent in the offence render it problematic.  Yet the crime of statutory rape has been maintained.  Legislatures have reaffirmed it, and courts have repeatedly upheld it.  One would not expect this to be so if the objectives the section were not of great importance.

 

What then is the objective of s. 146(1) ?   It has two aspects.  The first is the protection of female children from the harms which may result from premature sexual intercourse and pregnancy.  The second is the protection of society from the impact of the social problems which sexual intercourse with children may produce.

 

I adhere to the view that I expressed in R. v. Ferguson that the protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration.  Children merit this protection for three primary reasons.  The first is the need to protect them from the consequences of pregnancies with which they are ill-equipped to deal from the physical, emotional and economic point of view.  The second is the need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age.  The third is the need to protect them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.


Each of these reasons to protect children against premature sexual intercourse is reflected in corresponding social problems.  Juvenile pregnancies adversely affect both family and society.  It is society which bears the cost of abortions, society which often pays for the care of infant and mother.   The physical and emotional trauma inflicted on children through premature sexual intercourse are reflected in increased medical and social costs and decreased productivity.  Finally, juvenile prostitution is a notorious problem in many of our larger cities.  We must not blind ourselves to the reality of drug addiction and virtual enslavement of young girls which all too often results from their prostitution.  Section 146(1)  and its equivalents in other countries are aimed at combatting such prostitution by prohibiting sexual activity with very young girls.

 

The effects of premature intercourse on young girls and on society in general have been well documented.  One need only consult the judgments of the American courts upholding statutory rape provisions to gain an appreciation of the statistical data supporting the evils to which I have referred.  They have also been recognized in Canada: see Law Reform Commission of Canada, Working Paper No. 22 (Criminal Law: Sexual Offences), at pp. 25-26.

 

I conclude that the objectives of s. 146(1)  of the Criminal Code  are of great importance -- sufficient importance to justify overriding a constitutionally protected right.

 

(ii)           Are the Means Chosen to Effect the Objective Reasonable and Demonstrably Justified in a Free and Democratic Society?


At this, the second stage of the inquiry under s. 1 , the focus is on the nature of the limit imposed on Charter  rights and its proportionality to the consequences of the infringement of the accused's right.  The question is whether that limit can survive, given the importance of the objective of the legislation on the one hand, and the significance of the infringement of the Charter  right on the other.

 

A. Rational Connection

 

In considering whether there is a rational connection between the limitation on a right and the legislation under consideration, the court may have regard to the intention of the Legislature as well as the actual effects of the legislation: R. v. Morgentaler, [1988] 1 S.C.R. 30, per Beetz J., at p. 125.

 

Is there a rational connection between the imposition of strict liability and deterrence of men from intercourse with young girls?  In my view, there is.  Were the defence of reasonable belief available, a man could escape conviction simply by saying that he believed the girl to be older than fourteen.  The defence of due diligence would require him to make enquiries to avoid conviction, but still leaves open the possibility that the girl may lie as to her age or even produce false identification, not an uncommon practice in the world of juvenile prostitution.

 


The imposition of strict liability eliminates these defences.  In doing so, it effectively puts men who are contemplating intercourse with a girl who might be under fourteen years of age on guard.  They know that if they have intercourse without being certain of the girl's age, they run the risk of conviction, and many conclude that they will not take the chance.  That wisdom forms part of the substratum of consciousness with which young men grow up, as exemplified by terms such as "jail-bait".  There can be no question but that the imposition of absolute liability in s. 146(1)  has an additional deterrent effect.

 

That being the case, I am satisfied that the rational connection between the imposition of strict liability in s. 146(1)  and its objective is established.

 

B.  Degree of Impairment

 

The limit should impair the right or freedom "as little as possible":  R. v. Big M Drug Mart Ltd., supra; R. v. Oakes, supra.  The infringement would not extend beyond what is reasonably necessary to achieve the legislative objective.  This is because a measure which infringes more than necessary is to that extent infringing a right without justification.  That is inconsistent with s. 1  of the Charter .

 


In dealing with this point, I find it useful to ask whether there is another way the same objective could be achieved without infringement of the right or with a lesser infringement of the right.  In the case of s. 146(1) , the answer to this question must be negative for the reasons I discussed under A. Rational Connection.  The only way of avoiding or diminishing the infringement of the accused's right not to be convicted in the absence of a guilty mind would be by introducing a defence of due diligence or reasonable belief.  Neither of those alternatives provides as effective a deterrent as removal of all defences based on the accused's lack of knowledge of the victim's age.

 

I conclude that the objective achieved by s. 146(1)  could not be achieved with a lesser infringement of the right.

 

I cannot leave this aspect of the analysis without adverting to the fact that Parliament has repealed s. 146(1)  and adopted a provision allowing the defence of due diligence.  In my opinion, the fact that Parliament has chosen to do this does not establish that the objectives of s. 146(1)  can be accomplished with a lesser infringement of the accused's rights.  An equally viable explanation is that Parliament has chosen, for whatever reasons, to reduce its objective.

 


To say that the minimum impairment test is not met because Parliament has replaced s. 146(1)  with a less stringent provision amounts to saying that the s. 1  test is not met whenever, rightly or wrongly, Parliament has concluded that an impugned provision should be revoked.  Such an approach to minimum impairment would be dangerous.  The logic upon which it rests would throw into question any provision which was not universally present in comparable free and democratic societies.  More importantly, the relationship between even closely-related legislative provisions and legislative objectives may be complex and subtle.  The reasons for legislative compromises may be diverse.  The fact that Parliament may at one point decide against an absolute liability statutory rape law does not automatically negate its earlier judgment that problems of enforceability justified absolute liability.  To so hold would be to abdicate the judicial function of balancing under s. 1  of the Charter .

 

C.           Proportionality Between the Effect of the Limit and the Objective

 

We arrive at the point where we must weigh the impact of the infringement of the accused's constitutional right against the importance of what is achieved by the legislation.  In the case at bar, what hangs in the balance is the public and private interest in protecting very young girls from intercourse on the one hand, and on the other the right of a person charged with an offence not to be convicted if he did not intend to commit the offence.

 

In the abstract, both considerations are of high importance.  The principle that a person should not be convicted unless he has some degree of mens rea is fundamental to our criminal law.  The degree of mens rea may vary from actual intention to recklessness or an absence of due diligence depending on the severity of the offence and the punishment, but it is essential that it be present: Re B.C. Motor Vehicle Act, supraR. v. Vaillancourt, supra.  Our society will not lightly tolerate deviation from this principle.

 


The question in the case at bar is whether deviation from the principle which requires mens rea can ever be tolerated in our society.  The submission put before us was essentially that in no case could a measure which violated the requirement for mens rea be justified under s. 1  of the Charter .  A measure which violates the fundamental principles of justice under s. 7 , and particularly as important a principle as the necessity for mens rea, can never, it is submitted, be "reasonable" and "demonstrably justified in a free and democratic society."

 

I cannot accept this submission.  My reasons relate to general principles of construction as well as practical implications which such an approach would have for construction of the Charter .

 

As a matter of construction, to hold that s. 1  can never as a matter of law be applicable to Charter  rights falling within certain categories is to rewrite the Charter .  The framers of the Charter  expressly subjected all the rights and freedoms which it guarantees to the override of s. 1 .  It is not for the courts to alter this by developing categories of rights which are immune from scrutiny under s. 1 .

 

On a more practical level, I think it would be an error, at this early time in our experience with the Charter , to foreclose the possibility that cases may arise in which even the most sacred of our rights may be required to yield to considerations raised under s. 1  of the Charter .

 


The philosophy upon which the Charter  rests is that the fundamental rights which it enshrines should be subject to scrutiny under s. 1 .  It may be difficult to establish the conditions necessary to override them, but that does not mean that they should not be examined.  Constitutional jurisprudence here and in the United States has shown the impracticability of treating rights as abstract absolutes.  The framers of our Charter  recognized this and provided that laws in conflict with fundamental rights should be scrutinized under s. 1 .  What is really at stake in determining the scope and priority of constitutional rights are conflicting values and interests.  Such values and interests are best dealt with under s. 1  of the Charter , which permits a contextual analysis in which the effect of permitting one interest to prevail over the other may be considered in the matrix of the facts and social situation in which the rights are situate: see Wilson J., Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.

 

I therefore proceed on the premise that important as the right not to be convicted in the absence of mens rea is, one must nevertheless proceed to s. 1  of the Charter  to determine if s. 146(1)  can be saved as a reasonable measure justified in a free and democratic society.

 

The first point is that many societies which we would regard as free and democratic, such as England and the United States, consider the offence of statutory rape to be both reasonable and justifiable notwithstanding its elimination of mens rea.

 

Several reasons may be suggested for this position.  The first and most important is that there is no equally effective way of dealing with the problem of intercourse with young girls.  For the reasons suggested earlier, offences permitting a defence of due diligence or reasonable belief as to age are predictably less effective in deterring intercourse with young girls than is an absolute liability offence.


The second is that the elimination of mens rea from s. 146(1)  of the Criminal Code  may be viewed as less offensive than, for example, the elimination of mens rea from the offence of murder.  The age of a young girl with whom one is contemplating intercourse is unlikely to be a matter to which a man fails entirely to address his attention.  He must have some impression as to her age, and must from his experience have some idea of how far wrong he is likely to be in this impression;  his conduct may be presumed to be predicated on a range of accuracy.  A girl of thirteen may appear to be older, but there are limits as to how much older.  Cases in which the accused does not at least advert to the possibility (or wilfully shuts his eyes to the possibility) that a girl actually under fourteen might be that age, may be surmised to be infrequent.

 

Although one may postulate the case of a "morally blameless" person being convicted under s. 146(1) , however rare that case may be, one must also remember that all that a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen.  Viewed thus, the infringement on the freedom imposed by s. 146(1)  of the Criminal Code  does not appear unduly draconian, considering the great harms to which the section is directed.

 


Finally, a person convicted under s. 146(1)  faces no mandatory minimum sentence.  While the accused may be convicted in the absence of knowledge that the victim was under fourteen, his lack of culpability may be expected to be reflected in his sentence.  While this is not an ameliorating factor in determining whether absolute liability offends s. 7 , it cannot be ruled out as a relevant consideration in deciding whether the aspect of absolute liability in s. 146(1)  is saved under s. 1  of the Charter .

 

These considerations, while they do not negate the absolute liability imposed by s. 146(1) , suggest that it may be more easily defended under s. 1  of the Charter  than other offences involving no mens rea.  In Re B.C. Motor Vehicle Act, the offence was complete even though the offender did not know that his or her licence had been suspended.  There was no reason to consider the validity of one's licence before driving, in the way one is likely to consider the age of the girl with whom one is contemplating sexual intercourse.  It is arguably easier to avoid the possibility of infringing s. 146(1)  by avoiding sex with girls of whose age one is not certain than to avoid the possibility of liability under the British Columbia Motor Vehicle Act by refraining from driving, in circumstances where one has no reason to suppose one should not drive.  Finally and most importantly, in Re B.C. Motor Vehicle Act and in Vaillancourt the accused was faced with a minimum sentence; once convicted, imprisonment was certain.  In the case of s. 146(1) , that is not so; if the court is persuaded that the accused was truly morally blameless, he may be set free:  see s. 663 (now s. 737) of the Criminal Code .

 

For these reasons, I am of the view that s. 146(1)  can be distinguished from Re B.C. Motor Vehicle Act and Vaillancourt in the application of s. 1  of the Charter .  The actual effect of the absence of mens rea in s. 146(1)  is much less serious than it may be in other cases.

 


I need not reiterate the seriousness of the problems addressed by s. 146(1)  of the Criminal Code , nor the arguments suggesting there is no alternative way of dealing with them as effectively as by a provision which leaves no defence based on ignorance of age of the victim.  These considerations, coupled with the fact that the lack of mens rea in s. 146(1)  is less intrusive of the accused's rights than is the case in other absolute liability offences, lead me to conclude that the intrusion on the accused's right not to be convicted in the absence of a guilty mind represented by s. 146(1)  is reasonable and demonstrably justifiable in a free and democratic society.

 

I am reinforced in this view by the fact that provisions similar to s. 146(1)  are in force in many other free and democratic societies.

 

(b) Is the Breach of s. 15  Saved by s. 1  of the Charter ?

 

In my opinion, the violation of s. 15  of the Charter  represented by s. 146(1)  of the Criminal Code  is reasonable and demonstrably justified in a free and democratic society and thus saved under s. 1  of the Charter .

 

I need not expatiate further on the objective of s. 146(1) ; it is clearly capable of overriding other Charter  rights, provided the means used are appropriate and proportionate.  The rational link between the objective and the measure and impairment to a minimum degree are likewise established.  The only question is whether the infringement of s. 15  is justified, given the objectives of s. 146(1) .


I am satisfied that the means represented by s. 146(1)  are proportionate and justified when weighed against the seriousness of the infringement of the rights of equality of accused persons and victims under s. 15  of the Charter .   The singling out of males as the only offenders is justified given the fact that only males can cause pregnancies, one of the chief evils addressed by s. 146(1) .  The protection of female children to the exclusion of male children may be justified on the same ground; only females are likely to become pregnant.  On this ground, a majority of the Supreme Court of the United States had no difficulty in upholding a statutory rape law applying to females under eighteen which was challenged on equal protection grounds: Michael M. v. Superior Court of Sonoma County, supra.   Moreover, while adult females may prey on males under the age of fourteen, the gravamen of the problem of intercourse with young juveniles involves intercourse by men with young girls.  The argument that it is unjust to blame only the male for sexual activity of a female under fourteen is met by enforceability considerations.  As pointed out in the Sonoma County case, at p. 473, if both parties were criminally liable, no one would ever come forward with a complaint, for fear of prosecution.  Moreover, under the terms of the legislation (see former s. 147 ), the accused must be older than the complainant.   In practice, he is usually considerably older.  In these circumstances it is not irrational to attribute responsibility to him for the sexual intercourse having taken place.  The law cannot be said to err in holding an older male responsible for the situation given that a child of thirteen or younger cannot be presumed to meaningfully consent to intercourse.

 

Conclusion

 


I conclude that s. 146(1)  of the Criminal Code , while it violates ss. 7  and 15  of the Charter , is a reasonable measure demonstrably justified in a free and democratic society.

 

I would dismiss the appeals in both cases.

 

Appeals allowed, GONTHIER and MCLACHLIN JJ. dissenting.

 

Solicitors for the appellant Hess:  Gowling, Strathy & Henderson, Ottawa.

 

Solicitors for the appellant Nguyen:  Nozick, Sinder & Associates, Winnipeg.

 

Solicitors for the respondent:  Gregory J. Fitch, Toronto; and the Attorney General for the Province of Manitoba, Winnipeg.

 

 



     *    Chief Justice at the time of judgment.

 

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