R. v. Stevens

R. v. Stevens
Collection
Supreme Court Judgments
Date
1988-06-30
Report
[1988] 1 SCR 1153
Case number
17655
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 17655
Decision Content
r. v. stevens, [1988] 1 S.C.R. 1153
Glenn Brian Stevens also known as Glenn Brian Villeneuve Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Alberta Intervener
indexed as: r. v. stevens
File No.: 17655.
1988: February 2; 1988: June 30.
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 Freedoms 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