R. v. Hess; R. v. Nguyen

R. v. Hess; R. v. Nguyen
Collection
Supreme Court Judgments
Date
1990-10-04
Report
[1990] 2 SCR 906
Case number
20809, 21392
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20809, 21392
Decision Content
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.
Disapproved: R. v. Ferguson (1987), 16 B.C.L.R. (2d) 273; considered: R. v. Stevens, [1988] 1 S.C.R. 1153; referred to: R. 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 rig