Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Retrospectivity ‑‑ Fundamental justice ‑‑ Statutory rape ‑‑ Defence of mistake as to age statutorily denied ‑‑ Conduct giving rise to charge arising before proclamation of Charter ‑‑ Trial held after Charter in effect ‑‑ Whether Charter can be invoked ‑‑ Whether s. 146(1) of Criminal Code infringes s. 7 of Charter ‑‑ If so, whether section justified under s. 1 of Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 146(1).
Criminal law ‑‑ Statutory rape ‑‑ Defence of mistake as to age statutorily denied ‑‑ Conduct giving rise to charge arising before proclamation of Charter ‑‑ Trial held after Charter in effect ‑‑ Whether Charter can be invoked ‑‑ Whether s. 146(1) of Criminal Code infringes s. 7 of Charter ‑‑ If so, whether section justified under s. 1 of Charter .
The accused had consensual sexual intercourse five times with a thirteen‑year‑old girl between December 31, 1981 and February 24, 1982 and had himself turned sixteen years of age on January 14, 1982. He was convicted of having sexual intercourse with a female person who was at the time under the age of fourteen years and who was not his wife contrary to s. 146(1) of the Criminal Code . The Canadian Charter of Rights and Freedoms , although not in force when the alleged criminal conduct took place, was in force at the time of the accused's trial. At trial, the judge dismissed a motion to quash the information based on the statutory denial of a defence based on mistake of fact concerning the girl's age and the accused pleaded guilty. The Court of Appeal upheld the conviction. At issue here is whether (a) the accused can invoke the Charter when his conduct took place before the Charter came into force; (b) s. 146(1) infringes s. 7 of the Charter ; and (c) to the extent that s. 146(1) infringes s. 7, whether it is saved by s. 1 of the Charter .
Held (Lamer, Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ.: Section 7 of the Canadian Charter of Rights and Freedoms is not applicable to s. 146(1) of the Criminal Code because its application in this case would be a retrospective one. The words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) define, at the time the offence is committed, one of the constituent elements of the offence, the requisite mens rea, rather than deny to the accused, at the time of trial, a defence which he might otherwise have had. The so‑called "defence" of mistake of fact, which is removed by the above words, serves to raise a reasonable doubt as to the existence of the requisite mens rea. Thus the removal of the "defence" of mistake of fact by the words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) merely indicates that the offence, as defined, does not include that particular mental state in its mens rea.
The criminal liability to imprisonment for the offence created by s. 146(1) is imposed at the time the offence is committed. The liability imposed by law would ordinarily be established at trial in a particular case in accordance with the relevant substantive law, including any applicable constitutional provisions, as it existed at the time the offence was committed. It would give a retrospective application to s. 7 of the Charter to apply it to s. 146(1) of the Code merely because the liability imposed by s. 146(1) continued after the Charter came into force. It would be to change the applicable substantive law with retrospective effect.
Per Lamer, Wilson and L'Heureux‑Dubé JJ. (dissenting): The structure of s. 7 of the Charter militates against having the protection of that right hinge upon whether the Charter was in force at the time of the accused's conduct. Rather, the section is directed to the point of time at which someone is about to be deprived of his or her life, liberty or security of the person. It is the projected deprivation, and not the conduct giving rise to the charge, which triggers the application of s. 7.
A distinction is made at common law between matters of substance and matters of procedure for the purpose of determining whether retrospective effect should be given to new or amending legislation. Section 7 presents difficulty in characterization for this purpose because it enshrines both procedural and substantive rights. The appellant, however, in this case is not seeking a retrospective application of the Charter but rather a prospective one to determine his rights at trial.
The decision as to whether Charter provisions operate retrospectively should mirror the common law. Just as at common law procedural Acts apply to pre‑enactment conduct, procedural rights guaranteed by the Charter should apply to any post‑Charter proceeding regardless of when the underlying conduct took place. The rights in issue here are proceeding‑oriented and direct an application to post‑Charter proceedings. Whether this is true of substantive rights guaranteed by the Charter will depend on whether these rights expressly direct or necessarily imply that they apply to pre‑Charter conduct. A blanket rule cannot be adopted for all the provisions of the Charter . They must be considered individually.
Section 146(1) violates s. 7 of the Charter in that it attaches criminal liability on pain of imprisonment to conduct that is not only lacking in mens rea but is also non‑negligent. An accused can be convicted under the section even though he can show that he made an honest and reasonable mistake about the victim's age. This is not in accordance with the principles of fundamental justice.
The removal of a mens rea requirement from the offence described in s. 146(1) of the Code cannot be viewed under s. 1 of the Charter as a reasonable limit on the accused's s. 7 rights. Any rational connection between absolute liability and the objective of deterrence is tenuous. An absolute liability offence may serve as a deterrent to some but this effect, if it exists, is greatly overstated. The impairment inherent in s. 146(1), on the other hand, is very substantial. The impugned offence allows for the conviction of an individual who is not only morally innocent but who has taken all reasonable steps to determine the age of his sexual partner. This is deeply discordant with the principles of fundamental justice and may have a deleterious impact on the justice system as a whole. A less offensive mechanism was subsequently enacted by Parliament to serve the government's legitimate objective. Finally, the potential benefits flowing from the retention of absolute liability in s. 146(1) are not in any way proportional to the degree of impairment of the s. 7 right.
The words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) are of no force and effect. Since the trial judge did not allow the accused to make a defence based on the lack of mens rea, the conviction should be quashed and a new trial ordered.
Cases Cited
By Le Dain J.
Applied: R. v. James, [1988] 1 S.C.R. 669, aff'g (1986), 27 C.C.C. (3d) 1; distinguished: Dubois v. The Queen, [1985] 2 S.C.R. 350.
By Wilson J. (dissenting)
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Thorburn (1986), 26 C.C.C. (3d) 154; R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23, 145 D.L.R. (3d) 164; R. v. Lucas (1986), 27 C.C.C. (3d) 229; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. James, [1988] 1 S.C.R. 669, aff'g (1986), 27 C.C.C. (3d) 1; Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332; Dubois v. The Queen, [1985] 2 S.C.R. 350; Regional Assessment Commissioner, Region No. 13 v. Downtown Oshawa Property Owners' Association, [1978] 2 S.C.R. 1030; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; R. v. Antoine (1983), 5 C.C.C. (3d) 97; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Ferguson, [1987] 6 W.W.R. 481; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III.
Canadian Charter of Rights and Freedoms , ss. 1 , 2( a ) , 7 , 13 , 15 .
Constitution Act, 1982 , s. 52(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 146(1) (rep. and sub. by ss. 139(4), 140, 141), 508.
Wildlife Act, S.B.C. 1966, c. 55.
Authors Cited
Black, William. "Charter of Rights ‑‑Application to Pre‑Enactment Events," [1982] U.B.C. L.R. 59, (Charter Edition).
Boyle, Christine. Sexual Assault. Toronto: Carswells, 1984.
Côté, Pierre‑André. The Interpretation of Legislation in Canada. Cowansville, Quebec: Yvon Blais, 1984.
Craies, William Feilden. Craies on Statute Law, 7th ed. By S. G. G. Edgar. London: Sweet & Maxwell, 1971.
Driedger, Elmer. "The Meaning and Effect of the Canadian Bill of Rights: A Draftsman's Viewpoint" (1977), 9 Ottawa L.R. 303.
Mahoney, Richard. "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1.
Maxwell, Sir Peter B. Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.
Williams, Glanville Llewelyn. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 3 C.C.C. (3d) 198, 145 D.L.R. (3d) 563, 5 C.R.R. 139, dismissing an appeal from conviction pronounced by Davidson Prov. Ct. J. Appeal dismissed, Lamer, Wilson and L'Heureux‑Dubé JJ. dissenting.
Alan Gold, for the appellant.
Bruce Duncan, for the respondent.
Jack Watson, for the intervener the Attorney General for Alberta.
The judgment of Dickson C.J. and Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by
1. Le Dain J.‑‑I would dismiss the appeal on the ground that s. 7 of the Canadian Charter of Rights and Freedoms is not applicable to s. 146(1) of the Criminal Code because its application in this case would be a retrospective one. This Court has recently affirmed, in dismissing the appeal from the judgment of the Ontario Court of Appeal in R. v. James, [1988] 1 S.C.R. 669, that the Charter cannot be given retrospective application. In James, the Court of Appeal held that s. 8 of the Charter could not be applied to seizures carried out before the Charter came into force and that in consequence, s. 24 of the Charter could not, at the trial which took place after the Charter came into force, be applied to exclude evidence obtained from such seizures. Tarnopolsky J.A., who delivered the judgment of the Court of Appeal, said that "one applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs" and that "it is important that actions be determined by the law, including the Constitution, in effect at the time of the action": (1986), 27 C.C.C. (3d) 1, at pp. 21 and 25.
2. The "act" or "action" that is alleged to infringe s. 7 of the Charter in this case is s. 146(1) of the Criminal Code , and in particular the words "whether or not he believes that she is fourteen years of age or more" in that section. Because of those words s. 146(1), which provides for imprisonment, is said to constitute a deprivation of liberty not in accordance with the principles of fundamental justice, contrary to s. 7. The issue of retrospectivity in this appeal, as I perceive it, is how one characterizes the effect of those words and when they must be deemed to have had their effect, in so far as the application of s. 7 is concerned.
3. In my respectful opinion the effect of the words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) is to define, at the time the offence is committed, one of the constituent elements of the offence, the requisite mens rea, rather than to deny to the accused, at the time of trial, a defence which he might otherwise have had. The so‑called "defence" of mistake of fact, which is removed by the above words, serves to raise a reasonable doubt as to the existence of the requisite mens rea. See Mahoney, "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1, at p. 5. Thus the removal of the "defence" of mistake of fact by the words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) merely serves to indicate that the offence, as defined, does not include that particular mental state in its mens rea. The case of Dubois v. The Queen, [1985] 2 S.C.R. 350, is quite different. The "act" or "action" which was alleged to have infringed the Charter in that case was clearly one that took place at the trial and after the Charter had come into force: the introduction at a new trial, contrary to s. 13 of the Charter , of self‑incriminating evidence adduced at a previous trial.
4. The criminal liability to imprisonment for the offence created by s. 146(1) was imposed by s. 146(1), in respect of the offence committed by the appellant, at the time the offence was committed. The liability imposed by law would ordinarily be established at trial in a particular case in accordance with the relevant substantive law, including any applicable constitutional provisions, as it existed at the time the offence was committed. It would give a retrospective application to s. 7 of the Charter to apply it to s. 146(1) of the Code merely because the liability imposed by s. 146(1) continued after the Charter came into force. It would be to change the applicable substantive law with retrospective effect.
The reasons of Lamer, Wilson and L'Heureux‑Dubé JJ. were delivered by
5. Wilson J. (dissenting)‑‑The issue in this appeal is whether the statutory denial of a defence of honest belief as to age in s. 146(1) of the Criminal Code renders the section constitutionally invalid as an infringement of s. 7 of the Canadian Charter of Rights and Freedom s which is not saved by s. 1.
I The Facts
6. Between December 31, 1981 and February 24, 1982 the accused had sexual intercourse five times with a thirteen‑year‑old girl. The accused turned sixteen years of age on January 14, 1982. All the acts of intercourse were consensual.
7. The accused was charged with having sexual intercourse with a female person who was at the time under the age of fourteen years and who was not his wife contrary to s. 146(1) of the Criminal Code, R.S.C. 1970, c. C‑34. The section at the time of the acts of sexual intercourse read 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.
II The Courts Below
The Provincial Court
8. At trial the accused moved to quash the information. He submitted that the statutory denial of a defence based on mistake of fact concerning the girl's age violated s. 7 of the Charter . In a brief oral judgment Davidson Prov. Ct. J. dismissed the motion stating:
I'm reading this Section [s. 146(1)] which, obviously, is directed at the protection of social interest, namely, the protection of young children. Counsel argues that the maximum sentence here is life imprisonment, but, of course, that is not a minimum penalty. It's obviously a maximum penalty, and the judge, of course, in sentencing has the ability to tailor his sentence in accordance with the facts of the case.
As I've indicated, I find that this Section is directed at the protection of social interests and, under these circumstances, I'm ruling that it doesn't offend Section 7 of the Charter of Rights . . . .
The accused then entered a guilty plea. The trial judge convicted the accused and sentenced him to a suspended sentence with two years probation.
The Court of Appeal
9. The Court of Appeal (Martin, Houlden and Robins JJ.A.) dismissed the appeal in a brief oral judgment: see (1983), 3 C.C.C. (3d) 198. The Court noted that the Criminal Code has contained a similar provision since it was first enacted in 1892. The Court stated that similar legislation exists in the United States, England and Australia, sometimes with a higher age limit than fourteen. Further, the judges noted, the United States Supreme Court has "never held that an honest mistake as to the age of the prosecutrix is a constitutional defence to statutory rape". The Court of Appeal concluded as follows, at p. 200:
Assuming, without in any way deciding the question that s. 7 of the Charter permits judicial review of the substantive content of legislation, we are all of the view that, in so far as this case is concerned, s. 7 does not have the effect of invalidating s. 146(1) of the Criminal Code and preventing Parliament from creating the crime of having sexual intercourse with a girl under 14 years of age excluding mistake as to the age of the girl as a defence therefrom.
It is to be noted that the Court of Appeal's judgment pre‑dated the decision of this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
III The Issue
10. The appellant alleges that s. 146(1) of the Criminal Code , by denying him a defence based on mistake of fact as to the age of the female, violates his rights under s. 7 of the Charter and is accordingly unconstitutional. This allegation requires us to answer the following questions:
(a) can the accused invoke the Charter when his conduct took place before the Charter came into force?
(b) does s. 146(1) infringe s. 7 of the Charter ? and
(c) to the extent that s. 146(1) infringes s. 7, is it saved by s. 1 of the Charter ?
(a) Retrospectivity
11. The alleged criminal conduct by the accused took place shortly before the Charter came into force. The Charter was in force, however, at the time of the accused's trial. The respondent argues that the accused cannot rely on s. 7 of the Charter since this would involve giving s. 7 retrospective effect. The accused responds by saying that since the issue is whether s. 7 of the Charter requires the accused to be afforded a mistake of fact defence at his trial, the proper question to ask is whether the Charter was in force at the time of his trial. Since it was, the accused submits that this case does not raise an issue of retrospectivity. This Court must decide which of these two views is correct.
12. The issue of the retrospective application of the Charter has not yet been examined in depth by this Court. A number of appellate courts have, however, addressed the issue. In R. v. Thorburn (1986), 26 C.C.C. (3d) 154 (B.C.C.A.), the British Columbia Court of Appeal was asked to rule on the constitutional validity of this same section of the Criminal Code . Unlike the present case Thorburn involved a challenge to the legislation based on s. 15 of the Charter . The acts of intercourse took place before s. 15 came into force. The trial, however, commenced two weeks after s. 15 came into force. The sequence of events is therefore identical to that in the present case‑‑the conduct with which the accused was charged pre‑dated the coming into force of the section but his trial post‑dated it.
13. The Crown in Thorburn argued that the accused in these circumstances could not rely on the Charter . The Court of Appeal agreed. The Court relied heavily on the decision of Borins J. in R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23, 145 D.L.R. (3d) 164, in which the learned judge stated, at pp. 28‑32:
In my view, the proper question to ask relative to the present application is whether it was the intention of Parliament in enacting the Constitution Act, 1982 , that it apply to criminal conduct engaged in and completed before the Constitution was proclaimed in force on April 17, 1982. In this regard it is important to emphasize that I am concerned only with criminal conduct and with criminal conduct engaged in and completed before the Constitution became the law of Canada. It may well be that criminal conduct engaged in prior to April 17, 1982, but continuing after that date will bring about different considerations. The same may be said about other conduct entered into before April 17, 1982, and continuing thereafter such as, for example, discriminatory practices pursuant to legislation in place on the date of proclamation of the Constitution and now alleged to be repugnant to it.
In approaching the question I find it rather difficult to determine whether an affirmative answer would result in characterizing the Constitution as retroactive or retrospective legislation, as these words are defined by Driedger, "Statutes: Retroactive Retrospective Reflections", 56 Can. Bar Rev. 264 (1978), and adopted by Doherty, "`What's Done is Done': An Argument in Support of a Purely Prospective Application of the Charter of Rights ", 26 C.R. (3d) 121 (1982). Indeed, it may be that the Constitution defies strict doctrinal characterization as either exclusively retroactive, retrospective or prospective legislation for, as I suggested in the preceding paragraph, different facts may produce different interpretations. The operation of the Constitution in different cases will no doubt involve quite different considerations.
...
With respect to the defendant's motion to quash their indictment, it is my opinion that it must fail on the ground that the Constitution has no application to criminal conduct engaged in and completed before the Constitution was proclaimed in force. The Constitution cannot be applied to support a declaration that the law pursuant to which an offence is alleged to have been committed was inconsistent with the provisions of the Constitution when the offence was completed before the Constitution was in force.
14. A similar conclusion was reached by the Ontario Court of Appeal in R. v. Lucas (1986), 27 C.C.C. (3d) 229 (Ont. C.A.) The material facts in Lucas were identical to those in Thorburn. The Ontario Court of Appeal held that the accused could not invoke the Charter . The following excerpts from the decision, at pp. 236‑38, explain the Court's position:
As far as the cases before us are concerned I do not think that it would be justifiable, in principle or policy, to hold that s. 15 should be applicable to them. The basic argument in support of its applicability is the simple one that if s. 15 is in force before the conclusion of the proceedings and if its effect is that the provision under which the respondents are being prosecuted is unconstitutional, then the respondents should have the benefit of it even if this is, in effect, the application of new substantive law to past events. While I appreciate that the consideration of the superior nature of the Charter could be called in aid of this approach, it is an approach that could be applied, quite simply, in many cases involving pre‑Charter facts and it is reasonably clear that it has not been so applied. I think that the decisions in applying, in the main, the traditional principles relating to the possible retrospective application of statutes have fairly resolved the issues in a manner that is probably consonant with the intention of the framers of the Charter and with considerations of even‑handed justice.
...
I think that to go this far would be an unwarranted application of the Charter to past events. There are often potential examples of injustice on either side of the line when a new law comes into effect. It is no more easy to do perfect justice in this area of the law than many others but, by and large, the traditional rules relating to the prospective and retrospective application of new law have arrived at a reasonable compromise of the interests of justice ‑‑ including the important factor of predictability.
In McDonald it was observed that it is logical and fair that people should be dealt with in accordance with the law in effect at the time of their acts (see pp. 340 and 349 C.C.C., pp. 755‑6 and 764‑5 O.R.). In this respect I have in mind those persons who committed the same offence that the respondents are alleged to have committed at about the same time but whose proceedings, for one reason or another, were completed before s. 15 came into force. To give effect to the respondents' contentions on this point would indicate that these people would be better off if, somehow or other, the completion of their cases could have been delayed until April 17, 1985. In this respect the following passage in McDonald (at pp. 352‑3 C.C.C., p. 768 O.R.), albeit in that case it was concerned with whether the phase‑in provision in the Young Offenders Act contravened s. 15, is relevant:
Not only would this (the contention of the respondent that unfinished adult court proceedings against 16 and 17‑year‑olds should be transferred to a youth court on and after April 17, 1985) result in a substantial and unplanned‑for increase in the youth court case‑load and, in many cases, in legal confusion and substantially increased expenses (I do not suggest that the latter in itself is a valid Charter consideration), it would also impinge upon the principle that we are concerned with in this appeal, that of equality. Persons of the same age who committed offences during the same period when a particular law was in force describing the consequences relating to a conviction, would not be treated equally. The distinction, depending on whether the proceedings were finally terminated before or after April 17, 1985, would be an arbitrary and capricious one. It would turn the administration of justice into a game and would ignore the important principle of justice that equals should receive equal treatment. Also, if such were the rule it would provide a strong incentive to indulge in improper tactics to delay proceedings that would not be countenanced by a responsible legislator.
The respondent asks us to ignore those persons in the same position as he is, except for the fact that their cases were concluded before April 17, 1985, on the short ground that they are not before the Court. Quite simply, a fair and sensible approach to the problem before us, one that pays due regard to the integrity of the law, requires their position to be taken into account.
I think that this consideration bears squarely on the fairness of the application of the traditional rules to the retrospectivity issue in these cases.
15. A number of decisions of this Court have addressed the retrospective application of the Charter but none seem to me to be determinative of the issue in the present appeal. In Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, this Court expressed the view in obiter that the procedures to be followed at a hearing are to be determined by the law as it existed at the time of the hearing. The issue arose because the rulings of the Hearing Officer which were being challenged under the Charter in that case were all made before the Charter came into force. Irvine, however, did not settle the issue of whether an accused can invoke the Charter when the Charter was not in force at the time of the accused's conduct but was in force at the time of the accused's trial.
16. The retrospective application of s. 15 was discussed by this Court in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. Dickson C.J., writing for the majority, stated, at p. 786:
No cogent argument was advanced in support of the availability of s. 15 to challenge the conviction of the retailers in the present case. Section 32(2) is clear:
32. ...
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
The retailers in the present appeals opened their stores, were charged and were convicted at a time when the Charter did not confer a right to equality before and under the law. Even if it could be said that the Retail Business Holidays Act has abridged the retailers' s. 15 rights since April 17, 1985, I cannot see how this might have any bearing on the legality of their convictions or of the Act prior to that time. The proceedings began and continued through the courts as quasi‑criminal proceedings. This is not a reference nor even a series of applications for declaratory relief. Accordingly, no answer ought to be given to the second constitutional question in respect of s. 15.
It is apparent that Edwards Books does not answer the question raised by the present appeal. It stands for the proposition that one cannot rely on a right guaranteed by the Charter if the Charter was not in force when one was tried and convicted. In this appeal the Charter was in force at the time of Stevens' trial.
17. In R. v. James, [1988] 1 S.C.R. 669, the central issue was whether s. 8 of the Charter applied to conduct that took place prior to the coming into force of the Charter . The Ontario Court of Appeal held that it did not: see R. v. James (1986), 27 C.C.C. (3d) 1. This Court, in a short oral judgment, affirmed the judgment of the Ontario Court of Appeal.
18. Is the James case determinative of the issue in the present appeal? It seems to me that it is not. While this Court has affirmed in James that conduct taking place prior to the coming into force of the Charter cannot constitute a violation of the Charter so as to give rise to a remedy under s. 24 of the Charter , the question whether s. 7 may be invoked at a trial post‑Charter in relation to pre‑Charter events is still an open question in this Court.
19. The same may be said of the decision of this Court in Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332. The accused in that case were Coast Salish Indians charged with hunting deer out of season contrary to the Wildlife Act, S.B.C. 1966, c. 55. They argued that the burning of raw deer meat was required by their religion as part of a religious ceremony. They asserted their freedom of religion under s. 2( a ) of the Charter . The Court held that the accused could not invoke the Charter because as Beetz J. writing for the Court explained, at p. 338:
The Canadian Charter of Rights and Freedoms had not been enacted at the time the offence was committed.
It should be noted that the trial also pre‑dated the coming into force of the Charter . It was not open, therefore, to the accused in this case to allege a violation of any trial‑related Charter right.
20. In Jack and Charlie the alleged infringement of the Charter consisted in the prohibition of conduct that the accused argued was protected by freedom of religion in s. 2( a ) of the Charter . It made good sense, therefore, to ask whether the conduct was constitutionally protected at the time it took place. It clearly was not. In the present case, however, the appellants allege a violation of s. 7. Section 7 states:
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.
The structure of the section, it seems to me, militates against having the protection of the right hinge upon whether the Charter was in force at the time of the accused's conduct. Rather, the section seems to direct one to the point of time at which someone is about to be deprived of his or her life, liberty or security of the person. It is the projected deprivation which triggers the application of s. 7. We must ask therefore whether, at the time of the projected deprivation of the accused's right to liberty, that deprivation would be in accordance with the principles of fundamental justice or not.
21. What is it, we must ask, that makes the accused vulnerable to the loss of his liberty in a way which does not accord with fundamental justice? Is it the conduct which gave rise to the charge? Clearly not. There is nothing fundamentally unjust in imprisoning a person convicted of having intercourse with a female person who is under the age of fourteen and who is not his wife. What is fundamentally unjust, the accused alleges, is to deny him the defence of mistake of fact at his trial, to prevent him from adducing evidence to show that he had no mens rea, no guilty mind, but bona fide believed that the girl was over fourteen. It is the trial, he alleges, which does not comport with the principles of fundamental justice by exposing him to conviction and imprisonment on the basis of proof of the actus reus alone. The Charter was in full force and effect at the time of the trial. No issue of retrospectivity is therefore raised.
22. The accused finds some support for his position in this Court's judgment in Dubois v. The Queen, [1985] 2 S.C.R. 350. The issue in Dubois was whether evidence given by the accused in his previous trial could be used against him in a new trial ordered by the court. The accused successfully argued that allowing such evidence to be admitted would violate his right under s. 13 of the Charter . The Crown, noting that the original trial had taken place pre‑Charter , argued that the accused was attempting to have the Charter applied retrospectively. The Court unanimously rejected this argument, concluding that an application of s. 13 of the Charter may take pre‑Charter events into account without constituting a retrospective application of the Charter . As Lamer J. stated for the majority, at p. 359:
In my view, s. 13 is not being given in this case a retrospective effect. As I have indicated earlier, s. 13 guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings. That right came into force on April 17, 1982, the date of the coming into force of the Charter . However, given the nature and purpose of the right, it inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him or her. The time at which the previous testimony was given is irrelevant for the purpose of determining who may or may not claim the benefit of s. 13. As of April 17, 1982, all persons acquired the right not to have evidence previously given used to incriminate them. The protection accorded by the right is related not to the moment the testimony is given, but to the moment at which an attempt is made to use that evidence in an incriminating fashion. [Emphasis added.]
23. Likewise, in the present appeal, the protection accorded by s. 7 is not related to the time of the accused's conduct, but to the time when he is denied the opportunity to put forward his defence of honest mistake of fact. This is when he becomes vulnerable to the loss of his liberty in a way which offends the principles of fundamental justice. And this takes place at his trial post‑Charter .
24. It does unquestionably follow from this conclusion, as the respondent points out, that two people who engaged in the same conduct on the same day will have different protection at their trials depending upon whether their trials occur before or after the coming into force of s. 7. One will be permitted to advance the defence of honest mistake of fact and the other will not. It seems to me, however, that this is mandated by the fact that the real impact of the impugned words in s. 146(1) is experienced for the first time at trial. It is at his trial that an accused is confronted with the potential loss of his liberty in a way which offends the principles of fundamental justice, i.e., by being convicted of a criminal offence on the basis of proof of the actus reus alone. In the pre‑Charter era there was no constitutional impediment to denying the accused a mistake of fact defence. But with the advent of s. 7 of the Charter such a denial became unconstitutional as a violation of the principles of fundamental justice. An accused could not thereafter be convicted and imprisoned under an unconstitutional provision. It follows from this that there will inevitably be a disparity of treatment between the two accused depending on their dates of trial. It does not, however, seem to me to be an acceptable solution to such disparity to deprive the accused whose trial post‑dates the Charter of his Charter protection in order to achieve the same result in each case.
25. In determining whether retrospective effect should be given to new or amending legislation a distinction is made at common law between matters of substance and matters of procedure. It is necessary to review the common law in this respect and decide whether or not it has any application to rights under the Charter .
26. The general rule is stated in Maxwell on the Interpretation of Statutes, 12th ed., at p. 215, as follows:
It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
However, it is not always easy to determine whether the statute discloses an intent that it operate retrospectively or gives rise to a necessary implication to that effect. Craies on Statute Law, 7th ed., at p. 387, says that a statute is retrospective if it:
...takes away or impairs any vested right acquired under existing law, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.
Other statutes, although they may relate to acts or events which are past, are not retrospective in the sense in which the word is used for purposes of the common law rule. These statutes may be prospective in the sense that they operate forwards although they look backwards. They attach new consequences for the future to events that took place in the past before the statute was enacted.
27. At common law procedural statutes were traditionally treated as an exception to the presumption against retrospective operation. Such statutes applied retrospectively unless there was some special reason why they should not. In Maxwell, supra, the rule is stated as follows, at p. 222:
The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. "Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be." (Gardner v. Lucas (1878) 3 App. Cas. 582, per Lord Blackburn at p. 603.)
28. Commenting on the common law presumption against retrospective operation and its exception in the case of procedural statutes, Professor William Black in "Charter of Rights ‑‑Application to Pre‑Enactment Events," [1982] U.B.C. L.R. 59 (Charter Edition), states, at p. 65:
It is usually said that the presumption against retrospective operation does not apply to procedural statutes and that such statutes operate retrospectively unless there is some special reason why they should not. On this basis, courts apply procedural rules after they are enacted even though the proceedings concern an event that occurred before enactment. This rule usually leads to a sound result, but it seems more sensible to base the conclusion on the ground that the law is being applied prospectively and that no special presumption is required. If a statute governs the way a hearing is conducted or a decision is made, it seems best to classify it as retrospective only if the hearing or decision occurs before the statute comes into effect. It is hard to see why the date of the event giving rise to the litigation should govern. For example, a statute that changes the onus of proof would be classified as prospective if applied to a trial taking place after the statute is enacted even though the trial is about a prior event. [Emphasis added.]
29. Professor Côté agrees that the immediate application of procedural enactments is improperly characterized as retrospective just because the enactments are being applied to events that have already taken place. The application is immediate or prospective: see Côté, The Interpretation of Legislation in Canada, at p. 135 et seq. This would appear to be the more modern approach.
30. This approach was followed by this Court in Regional Assessment Commissioner, Region No. 13 v. Downtown Oshawa Property Owners' Association, [1978] 2 S.C.R. 1030. In that case a law was passed that altered the basis upon which property values were to be assessed. The Supreme Court had to decide whether the new law applied to proceedings that had already commenced before the new law was passed. The Court concluded that it did, stating, at p. 1034:
The plain meaning of the words of s. 90 is that the criteria so set out should apply to a series of bodies including the Ontario Municipal Board at the time when each tribunal decides an assessment appeal. It is simply not a question of retroactivity at all.
However, in other comparable cases this Court has not viewed the operation of the provision as prospective but has relied on the exception permitting retrospective operation of procedural statutes in order to apply the provision: see especially Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403.
31. Professor Black concludes, at p. 66, of his article:
Whether a statute is treated as prospective or as an exception to the presumption against retrospectivity, there is general agreement as to the result; procedural statutes apply whether or not the events at issue in the proceeding (the crime or tort, for example) occurred before the statute was enacted.
32. Should the interpretation of the Charter be guided by these rules of statutory construction? Or are there material differences between the Charter and ordinary legislation which makes them inappropriate? The most fundamental difference is that while many statutes impose penalties, duties or disabilities on citizens, the Charter guarantees rights. Maxwell, supra, points out, at p. 218, that the presumption against retrospective operation has traditionally been applied in cases where retrospective operation "would prejudicially affect vested rights or the legality of past transactions, or would impair contracts, or would impose new duties or attach new disabilities in respect of past transactions". These considerations do not apply where a citizen is asserting a Charter right.
33. Mr. Elmer Driedger in his article "The Meaning and Effect of the Canadian Bill of Rights: A Draftsman's Viewpoint" (1977), 9 Ottawa L.R. 303, opined that the presumption against retrospective operation ought not to apply to the Canadian Bill of Rights. He said, at p. 307:
There is a presumption against the retrospective operation of statutes; but the prospective application of the Bill of Rights to a statute in existence when the Bill became law is not a retrospective operation. There is also a presumption against interference with vested rights; but the Bill of Rights gives rights, rather than interferes with them.
The same is, of course, true of the Charter .
34. However, it seems to me that the decision as to whether Charter provisions operate retrospectively will no doubt mirror the common law. Just as at common law procedural Acts are seen to apply to pre‑enactment conduct, the procedural rights guaranteed by the Charter would seem to apply to any post‑Charter proceeding regardless of when the underlying conduct took place. These rights are proceeding‑oriented. They direct an application to post‑Charter proceedings: see Dubois v. The Queen, supra. As Professor Black points out, it makes little difference in the case of procedural provisions whether they are characterized as prospective or as an exception to the presumption against retrospectivity. The result is the same. Whether this is true of substantive rights guaranteed by the Charter will depend on whether these rights expressly direct or necessarily imply that they apply to pre‑Charter conduct. I do not believe that a blanket rule can be adopted for all the provisions of the Charter . Each section must be considered individually.
35. Section 7 admittedly presents difficulty in characterization for this purpose because it enshrines both procedural and substantive rights. Can the same section enshrine rights that apply to pre‑Charter conduct and rights that do not? I do not think it can. As discussed earlier, s. 7 rights crystallize at the point at which the individual is about to be deprived of his or her life, liberty or security of the person in a manner not consonant with fundamental justice. This is true whether the rights are procedural or substantive. In the present case, this deprivation occurred at the trial of the accused. Section 7 was in force at that time. The accused was therefore entitled to rely on the rights enshrined in the section.
36. In any event, it would appear to me that the appellant is not really seeking a retrospective application of the Charter . While the conduct giving rise to the charge took place prior to the Charter 's coming into force, the appellant is, in my view, asking that it be applied prospectively to determine his rights at trial: see Professor Côté, supra. I find the following quotation from the judgment of Martin J.A. in R. v. Antoine (1983), 5 C.C.C. (3d) 97, at pp. 102‑3, apposite in this case:
An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: see R. v. Johnston (1977), 34 C.C.C. (2d) 325, [1977] 2 W.W.R. 613, 37 C.R.N.S. 234; affirmed [1978] 2 S.C.R. 391, 39 C.C.C. (2d) 479n, [1978] 2 W.W.R. 478 (S.C.C.); R. v. Negridge (1980), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255 (Ont. C.A.).
I turn, therefore, to the question whether s. 146(1) of the Code violates s. 7 of the Charter .
(b) Section 7
37. Section 146(1) of the Code makes it an indictable offence punishable by a maximum of life imprisonment for a male person to have sexual intercourse with a female person who is under the age of fourteen and who is not his wife. It is not a defence that the accused bona fide believed that the female person was fourteen years of age or older. This defence is expressly removed by s. 146(1). But for its statutory removal the defence would have been read in by the courts: see R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, and Pappajohn v. The Queen, [1980] 2 S.C.R. 120. However, since the statute expressly removes it, the issue is whether the criminal offence can withstand substantive judicial review under s. 7 of the Charter .
38. The appellant's Charter argument is simple and, in my view, convincing. Section 146(1) creates a criminal offence with a maximum penalty of life imprisonment. Such an offence, he submits, in order to survive a constitutional challenge under s. 7, must have a mens rea component. It cannot be an absolute liability offence. It cannot permit the conviction and imprisonment of a morally innocent person. He submits that this is exactly what it does. It permits the conviction of an accused who honestly (but mistakenly) believed that the complainant was fourteen years of age or older. This is so even if the mistake was both honest and reasonable in the circumstances.
39. The respondent, on the other hand, submits that s. 146(1) does not create an absolute liability offence. It contains a mens rea requirement. The accused cannot be convicted of the offence unless he (a) intends to have sexual intercourse, (b) intends to do so with a female, and (c) intends to do so with someone who is not his wife. This position is somewhat disingenuous. It is difficult to imagine how an accused could credibly plead that he was mistaken as to the gender of his sexual partner or that he had mistakenly believed that he was not having sexual intercourse when in fact he was. It is only slightly more plausible that an accused could mistakenly believe that he was married to the complainant when in fact he was not. On the whole it is difficult to disagree with Professor Boyle's conclusion that ". . . in practical terms, this is an offence of absolute liability": see Boyle, Sexual Assault, at p. 105.
40. Section 146(1), accordingly, combines absolute liability with the possibility of imprisonment. Earlier decisions of this Court make it clear that such an arrangement violates s. 7 of the Charter . In Re B.C. Motor Vehicle Act, supra, Lamer J., writing for the majority, stated, at p. 513:
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. went on to quote from the judgment of Dickson J. (as he then was) writing for the Court in R. v. Sault Ste. Marie, supra, where he stated that "there is a generally held revulsion against punishment of the morally innocent" (p. 1310) and that absolute liability "violates fundamental principles of penal liability" (p. 1311). Lamer J. further stated, at p. 515:
In my view it is because absolute liability offends the principles of fundamental justice that this Court created presumptions against legislatures having intended to enact offences of a regulatory nature falling within that category. This is not to say, however, and to that extent I am in agreement with the Court of Appeal, that, as a result, absolute liability per se offends s. 7 of the Charter .
A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person.
41. In the recent decision of this Court in R. v. Vaillancourt, [1987] 2 S.C.R. 636, 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. He expressed it this way, 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.]
Section 7, therefore, prohibits the existence of offences that are punishable by imprisonment and that do not allow the accused as a minimum a due diligence defence.
42. It would appear then on the basis of these authorities that s. 146(1) is vulnerable to attack under s. 7 of the Charter in that it attaches criminal liability on pain of imprisonment to conduct that is not only lacking in mens rea but is also non‑negligent. An accused can be convicted under the section even although he can show that he made an honest and reasonable mistake about the victim's age. This is not in accordance with the principles of fundamental justice. The section is, therefore, in violation of s. 7. Can it be saved as a reasonable limit under s. 1?
(c) Section 1
43. The judgment of this Court in Re B.C. Motor Vehicle Act was applied by the British Columbia Court of Appeal in R. v. Ferguson, [1987] 6 W.W.R. 481. That case raised the same issue as the present appeal, namely the constitutional validity of s. 146(1) of the Code under s. 7 of the Charter . Both the majority (McLachlin J.A. with Taggart J.A. concurring) and the minority (An‑ derson J.A.) held, on the authority of Re B.C. Motor Vehicle Act, that the section infringed s. 7 of the Charter . The majority, however, found that it was saved by s. 1. Anderson J.A. found that it was not. The decision is accordingly highly instructive on the s. 1 analysis.
44. McLachlin J.A., after adverting to the principles enunciated by Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103, addressed the government objectives intended to be achieved by s. 146(1). She said, at p. 517:
The offence of sexual intercourse with a female child has been justified by different values at different times. The modern view is that the offence must be retained in the interests primarily of protecting children and secondarily of protecting society from the impact of the social problems which sexual intercourse with children may produce.
The protection of children is multi‑faceted and so obvious that evidence is not required to demonstrate it. First, there is an interest in protecting young girls from the consequences of pregnancies which they may be ill‑equipped to deal with from a physical, emotional or economic point of view. Second, there is an interest in protecting such children from the grave physical and emotional harm which may result from sexual intercourse at such an early age. Finally, there is an interest in protecting them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.
She was persuaded that these objectives were of sufficient importance to warrant overriding the s. 7 right provided the means chosen to do so were appropriate.
45. McLachlin J.A. had no difficulty in finding a rational connection between the impugned limit and the government objectives although this was hotly debated in the case and formed the basis on which Anderson J.A. dissented. She stated, at p. 520:
The appellant submits that the elimination from s. 146(1) of the defence of mistaken belief as to the age of the complainant is not rationally connected to the section's objectives. He argues that a man who believes that a girl is above the limited age will not be deterred by the absolute character of the offence. It follows, he submits, that there is no rational justification for refusing to permit the accused to raise his innocent belief in his defence.
In my opinion, this argument rests on a fallacy. The fallacy lies in the proposition that a man who believes that a girl is above the limited age will not be deterred by knowledge that his belief as to her age affords no defence. This, in my opinion, is not necessarily the case. A person who believes a certain thing must also accept that he may be mistaken in that belief. Belief and recognition that the belief may be in error are not mutually incompatible. Thus a man might conclude that a girl is over 14 because she looks older than 14. At the same time he might be aware that some girls who clearly appear to be over 14 are in fact younger than 14. This man would not be deterred from having sexual relations with the girl if he knew that his belief as to her age was a defence. However, he might well be deterred if he knew that regardless of his belief, he would be convicted if the girl turned out to be under 14. This truth is recognized by Glanville Williams, in Criminal Law, 2nd ed. (1961), p. 241:
If in the future some person who is inclined to such conduct knows the law as it is now held to be, he may say to himself: "I believe the girl to be over sixteen; but nothing in life is certain, and if she is in fact, under sixteen I may be punished: it is not worth the risk." To this extent absolute prohibition may deter.
It is worth noting that immediately after this passage Professor Glanville Williams continues: "But...to maintain the prohibition involves punishing the unlucky ones who turn out to be wrong, while letting free those who happen to be right, and this offends the sense of justice". McLachlin J.A. concluded that "logic and common sense dictate that elimination of mens rea as to the complainant's age provides an additional deterrent to those contemplating intercourse with young females" (p. 521).
46. McLachlin J.A. also found that the impugned limit impaired the s. 7 right no more than was required to achieve the government objective. She stated, at pp. 523‑24:
The only serious alternative to the elimination from s. 146(1) of the defence of the accused's belief as to the complainant's age is the proposal put forward by the Law Reform Commission of a reverse onus coupled with a due diligence test. This alternative has been embodied in s. 139(4) of Bill C‑15, which was adopted by Parliament (after the hearing of this appeal), received Royal Assent on 30th June 1987, but has not been proclaimed. That provision states that it is not a defence to the charge "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".
This provision is not without its problems. What constitutes "all reasonable steps to ascertain the age of the complainant"? If the child has no proof of identification, would a simple inquiry suffice? If not, would requesting and obtaining proof of age in the form of a birth certificate or driver's licence suffice? Street children and those exploiting them may be expected to forge, borrow or steal appropriate documentation. Where then is found the protection of children and the deterrence of those who exploit them?
When s. 146(1) is compared with the alternative of the defence of having taken "all reasonable steps to ascertain the age of the complainant", it is far from clear that it is an unreasonable approach to attaining the desired objective of the protection of children and society. Section 146(1) provides a considerably stronger deterrent than the alternative embodied in Bill C‑15. Given the importance of the goal of protecting children against the evils of immature intercourse, it can be argued that that [sic] the need for the additional deterrent effect of s. 146(1) outweighs the need to permit accused persons to raise the defence of innocent belief. In short, the proposed alternative to s. 146(1) is problematic and calculated to reduce the protection which the law affords to children. On the test proposed by the majority of the Supreme Court in R. v. Edwards Books, the limited infringement of the rights of some accused persons entailed by s. 146(1) infringes on the accused's rights as little as "reasonably possible".
47. In addressing the issue of the proportionality of the means used to the objective sought to be achieved McLachlin J.A. acknowledged that the infringement of s. 7 by s. 146(1) was a serious one. That being so, it could only be saved under s. 1 if the objective to which it was directed was "of considerable importance". She found that it was. I quote from pp. 525‑26:
I have earlier in these reasons discussed the magnitude of the personal and social problems which result from men having intercourse with girls who, while physically mature, remain children. The evils of premature pregnancy, lasting physical and psychological harm to children, and the exploitation of children through prostitution and wantonness are serious and widely accepted. The question is whether they are serious enough to justify the significant infringement of the accused's constitutional right not to be imprisoned without proof that he intended to commit the prohibited act. In short, is the necessary proportionality or balance established?
In my view, it is. Elimination from s. 146(1) of the defence of the accused's belief that the complainant is over the statutory age provides additional protection to a class of children who would otherwise have little protection‑‑girls under the age of 14 who appear to be older‑‑the very class of children at greatest risk from the evils of pregnancy and prostitution. It means that men cannot engage in sexual intercourse with girls who appear to have attained the statutory age or who otherwise convince them they have attained that age, secure that their belief will afford them a defence should they be charged. They will know that regardless of what the girl may say or how she may appear, there is a possibility that conviction may ensue. In the absence of any alternative providing equivalent protection, it cannot be said that elimination of the accused's belief that the child was over 14 as a defence under s. 146(1) is a disproportionate or unreasonable response to the problem.
She concluded that not only was the limit reasonable, it was also justified in a free and democratic society. She stated, at p. 527:
For over a century these statutes have been an integral feature of the legal system in these countries. This state of affairs is a convincing indication that the limitation on the rights of the accused entailed in eliminating mens rea as to the age of the victim in the offence of intercourse with a female child is justifiable in a free and democratic society.
48. Is McLachlin J.A. correct in suggesting that absolute liability is rationally connected to the objective of deterrence? In my view, if there is a connection, it is a somewhat tenuous one. The learned Justice's thesis seems to be based on the assumption that an individual contemplating sexual intercourse with a female who appears to him to be over 14 first addresses his mind to the mens rea requirement of a fairly obscure section of the Code. In my view, this ascribes an unrealistically high degree of legal sophistication to the average accused.
49. Moreover, it seems to me that any general deterrence that could conceivably flow from the statutory negation of the mens rea requirement would only afford protection to a narrow subset of the protected group. As Professor Boyle points out, the lack of a mistake of fact defence "is irrelevant with respect to the most serious form of the offence, intercourse with very young children, where one can suppose that a mistake of fact argument would not work anyway" (pp. 107‑8). Any hypothetical deterrence, therefore, will be limited to borderline cases. As McLachlin J.A. points out, the deterrent effect of the rule cannot be documented. It is, however, necessary to attempt to quantify this effect in order to assess whether the respondent has discharged its s. 1 onus. While the fact that s. 146(1) is an absolute liability offence may serve as a deterrent to some who would not otherwise be deterred, I cannot think that the deterrent effect is as great as McLachlin J.A. perceives it to be.
50. Assuming that a rational connection can be established, can s. 146(1) be said to impair the s. 7 right as little as possible? The impairment inherent in s. 146(1) is very substantial. The impugned offence allows for the conviction of an individual who is not only morally innocent but who has taken all reasonable steps to determine the age of his sexual partner. This is deeply discordant with the principles of fundamental justice. Furthermore, it may have a deleterious impact on the justice system as a whole. As Dickson J. stated in R. v. Sault Ste. Marie, at p. 1311:
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.
51. Is a less offensive mechanism not available to serve the government's legitimate objective? Parliament seems to have concluded that the answer to this question is yes. The provisions recently enacted [S.C. 1987, c. 24] to replace s. 146(1) allow the accused to raise a defence of due diligence. Sections 140 and 141 of the Code replace the old s. 146(1) by creating 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. under these new sections stating:
139. ...
(4) It is not a defence to a charge under section 140 or 141, subsection 155(3) or 169(2), or section 246.1, 246.2 or 246.3 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.
There can be no doubt that this provision infringes the accused's s. 7 rights less than the section challenged in the present appeal. Parliament has therefore concluded that society's needs can be served by a less stringent provision. Given that the respondent has changed its legislation in this way, I do not think it is open to the respondent to argue that the impugned version of s. 146(1) impaired the accused's rights as little as possible. This is not a case where the court is forced to speculate about the possibility of less offensive legislative schemes. Parliament has already enacted one.
52. Finally, it cannot, in my opinion, be said that the potential benefits flowing from the retention of absolute liability in s. 146(1) are in any way proportional to the degree of impairment of the s. 7 right. I agree with Anderson J.A. who made the following observation in his dissenting reasons, at p. 509:
Even if one assumes that the retention of strict liability in s. 146(1) would have some limited deterrent effect and some rational connection to the objective of protecting young girls, which is highly doubtful, I am of the opinion that the removal of the defence of honest mistake of age does not satisfy the other two components of the proportionality test. The denial of the defence of honest belief as to age in s. 146(1) dramatically impairs the right of the accused not to be convicted of crime if he honestly, although mistakenly, believes in circumstances which would render his conduct innocent.
Furthermore, in my opinion, the deterrent effect of the denial of the defence of mistake of fact in s. 146(1) would be so marginal as not to justify the punishment of innocent persons or the placing of restraints on proper and legal activities. While theoretically one may speculate that the strict liability offence in s. 146(1) may have some deterrent effect, there is little to suggest that the effect is significant.
53. I would, accordingly, conclude that the removal of a mens rea component from the offence described in s. 146(1) of the Code cannot be viewed under s. 1 of the Charter as a reasonable limit on the accused's s. 7 rights.
IV The Remedy
54. Section 52(1) of the Constitution Act, 1982 provides 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.
55. Counsel for the appellant seeks a declaration that s. 146(1) of the Code is constitutionally invalid and that his client should therefore be acquitted. With respect, it seems to me that s. 52(1) is very specific that a law found to be inconsistent with the provisions of the Constitution is only without force and effect to the extent of the inconsistency. I believe therefore that the appropriate declaration under s. 52(1) is 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. This means that the section shorn of the offensive words will read:
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.
56. At trial the appellant attempted to enter a defence based on lack of mens rea. The trial judge did not allow him to make this defence, holding that the express denial of this defence in s. 146(1) of the Code was constitutionally valid. The trial judge was wrong. The appellant should have been allowed to make his defence.
57. This being so, the appellant's conviction must be quashed and a new trial ordered. The new trial would take place under the section as amended above. Given, however, the circumstances of this case, the length of time which has elapsed since the conduct giving rise to the charge, and the fact that the appellant has already served his two years of probation, this might well be an appropriate case for the Attorney General to direct a stay of proceedings under s. 508 of the Code.
58. I would allow the appeal.
Appeal dismissed, Lamer , Wilson and L'Heureux‑Dubé JJ. dissenting.
Solicitors for the appellant: Gold & Fuerst, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
Solicitor for the intervener: The Attorney General for Alberta, Edmonton.
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