R v. Hess R. v. Nguyen [1990] 2 S.C.R. 906: Criminal Code prohibiting sexual intercourse with a female person under the age of fourteen years

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.

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