WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 07 11 Court File No.: BRAMPTON 19-25522

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.V.

Before: Justice W.J. Blacklock Heard on: June 9, 2022 Reasons for Judgment released on: July 11, 2022

Counsel: Jelena Vlacic....................................................................................... counsel for the Crown Colleen McKeown.................................................................. counsel for the accused A.V.

Application Under Section 7 of the Charter of Rights and Freedoms

BLACKLOCK J.:

[1] I have before me an application asking me to conclude that I should not give effect to section 7(4.1) of the Criminal Code in this case on the basis that the section is a breach of section 7 of the Charter of Rights and Freedoms. It is asserted that this provision infringes the Applicant’s liberty interests in a way that is contrary to the principles of fundamental justice in that it is overbroad.

[2] The case has an unusual history. Perhaps all I need to say at this point is that I permitted this issue to be raised by new counsel between conviction and sentence although it was not raised by former counsel who conducted the trial through to my finding of guilt.

[3] The facts in the case before me involve Mr. V. sexually interfering with his daughter, a resident of Canada, while she was visiting him on holidays without her mother while he worked abroad.

[4] Authorities binding on me indicate that a law is overbroad within the meaning of the Charter if it sweeps up cases which to use the language of Canada (Attorney General) v. Bedford, 2013 SCC 72, 2013 3 SCR 1101 at para. 101 have no connection to its objective.

[5] It is agreed between the parties that it is no answer that the Applicant’s conduct in the case before me is at the central core of what is aimed at by the statute in question. It is agreed that if there are cases before the court as reasonable hypotheticals which would be caught by the statute, and which are not connected to its objective, a breach of section 7 is present. At that point it is said that the Crown must justify the infringement under section 1 of the Charter or move to the question of what is the proper remedy for the breach.

[6] The first step in assessing this type of argument is to determine what the objective of section 7(4.1) of the Code is. It is only then that one can properly assess whether or not the case before the court or any reasonable hypothetical proposed is or is not connected to that objective.

[7] Here the parties are not in accord with what the objective of the section in issue is. The Applicant puts the purpose of the legislation in their factum in two somewhat different ways. First, at paragraph 35, they state: “The purpose of s. 7(4.1) is to prevent Canadian nationals and residents from using the advantages of their nationality and residence to sexually exploit children in other countries by apprehending and prosecuting them when they do.” At paragraph 36 the Applicant states the purpose is “to prevent Canadian nationals and residents from escaping prosecution by travelling to sexually exploit children in other nations while respecting international comity”.

[8] The Crown respondent says the purpose of the legislation is broader. They also deny that respect for international comity is part of the law’s actual objective. They suggest Parliament was, given the nature of the problem, necessarily concerned about this to varying degrees over time but this is the “how” of the legislation not the “why” of it. They submit that the objective of this legislation is to prevent, what on Canadian standards, is seen as the sexual exploitation and abuse of children by Canadian citizens or permanent residents on a global scale whatever takes them abroad.

[9] The Crown suggests it was Parliament’s desire to send a strong message to Canadians and to the world about Canada’s intolerance for what it views as exploitive or abusive sexual activity directed to children in light of what were perceived as failures of or limitations on the international community in dealing with this issue.

[10] It has never been argued in this case that Parliament is not legislatively competent to exercise prescriptive jurisdiction over its citizens and permanent residents when beyond Canada’s boarders through the mechanism of section 7(4.1). This argument was made and rejected in R. v. Klassen, 2008 BCSC 1762. Nor was it argued that if the legislation’s objective was as the Crown has articulated it that that would somehow render Parliament incompetent to enact such legislation apart from the Charter. See also in support of Parliament’s legislative competence in this area Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and Section 7(4.1) of the Criminal Code Benjamin Perrin (2009) 13 Can. Bar. Rev. 175 at pg. 180-185.

[11] The authorities suggest that in determining Parliament’s objective in enacting any particular piece of legislation the court needs to have reference to a number of factors.

[12] As said in R. v. Appulonappa, [2015] 3 SCR 754, 2015 SCC 59, [2015] 3 RCS 754, [2015] SCJ No 59, [2015] ACS no 59 at para. 33:

As with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 879-82. Where legislation is enacted in the context of international commitments, international law may also be of assistance.

[13] If one looks to the wording of this legislation as it currently exists the wording itself suggests a broad objective as Parliament has chosen to use a legislative technique that is of a type which captures a larger group that it might otherwise if its focus was truly on Canadian travelers. The wording of the legislation now captures all Canadian citizens (resident in Canada or not) and permanent residents. It does not use the technique which it might have of making it an offence for residents of Canada to travel in order to commit or travelling and committing certain prescribed offences. Rather it has instead used the broader measure of actually deeming that the conduct of its nationals while abroad, in whatever capacity, has occurred in Canada if it falls within the definition of certain prescribed Canadian offences.

[14] The legislative background also suggests that the scope of the section and equally its objective expanded significantly as the proposed legislation went through the legislative process, again suggesting a broader objective ultimately lay at the heart of Parliament’s concern.

[15] The legislative history of the provision shows that it was originally confined to and aimed at problems associated with what had come to be known as “sex tourism”. In its original form it granted extraterritorial effect only to the offence created in the then section 212(4) of the Criminal Code which dealt with the offence of procuring a person under the age of 18 for prostitution. This version of the Bill also contained no requirement for any form of request for action from any official of the foreign state in which the conduct occurred or for the consent of the Attorney General. Both of these elements emerged later.

[16] As Gordon Kirkby the Parliamentary Assistant to the Minister of Justice and Attorney General of Canada said in introducing the original version of Bill C-27

This bill proposes further amendments to the Criminal Code to enable criminal prosecution in Canada of Canadian citizens and permanent residents who travel abroad to engage in the sexual exploitation of children for money and other considerations. This practice, which is sometimes referred to as sex tourism, can only be stopped by international commitments and collaboration. Bill C-27 recognizes this commitment and sends a very strong message internationally about Canada's intolerance of such practices. [emphasis added]

Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, 2nd reading, House of Commons Debates, 35-2, (June 10, 1996) at 3546

[17] As the legislation moved through the legislative process, however, it is clear that its objective expanded well beyond its original focus. Concerns were expressed by certain witnesses that all child exploitation was heinous and that included sexual exploitation that did not involve what might typically be thought of as consideration. As well, concerns were raised about Canadians taking children to other countries committing sexual offences against them there and then returning to Canada leading to enforcement failures whether from lack of will or otherwise. See “Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2 (November 26, 1996) (Ms. Linda Tripp) at 0950, 0955 and following and “Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2 (October 1, 1996) (Chair; Mr. Yvan Roy) at 1730

[18] The Bill was ultimately amended to give extraterritorial effect to a whole range of offences seen as having particular relevance to the sexual integrity of children beyond the procuring offence when committed abroad by Canadian citizens or permanent residents of Canada.

[19] Mr. Kirkby’s comments after the legislation emerged from committee support the notion that the legislation had indeed taken on a much broader objective.

[20] During the third reading of the bill that enacted 7(4.1) he then stated,

Initially, Bill C-27 proposed to amend the Criminal Code to enable the criminal prosecution in Canada of Canadian citizens and permanent residents who travel abroad to engage in the sexual exploitation of children for money or other forms of consideration. However, in light of very important testimony of several witnesses, the justice and legal affairs committee decided that the bill should go further and allow not only for the prosecution of Canadians who engage in what is often referred to as child sex tourism, but also of Canadians who sexually abuse children, including Canadian children while abroad without any money or any consideration being involved. ----- The practice of child sexual exploitation, whether in Canada or abroad, can be stopped only if each country is committed to adopting legislation to fight it and to working at the international level to have it recognized as being subject to criminal liability notwithstanding where the crime has been committed. Bill C-27, as modified by the justice and legal affairs committee, recognizes this commitment and sends a very strong message nationally and internationally about Canada's intolerance of such abhorrent practices. [emphasis added]

Bill C-27 An Act to amend the Criminal Code child prostitution, child sex tourism criminal harassment and female genital mutilation 3 rd reading House of Commons Debates 35- 2 Apr 4 1997 at 1325-1335.

[21] Consistent with this change in focus the marginal note in relation to section 7(4.1) was also changed between second and third reading from “Offences relating to child sexual tourism” to “Offences relating to sexual offences against children.”

[22] The preamble to the Bill when enacted referred to Canada’s concern about not only child prostitution, criminal harassment, and female genital mutilation but also violence against children generally and a concern about child exploitation generally. An Act to amend the Criminal Code (child exploitation, child sex tourism, criminal harassment and female genital mutilation) S.C. 1997, Ch. 16

[23] In taking this broader approach it was recognized that Canada was going further than its international obligations required it to. Certainly, the range of offences went beyond those later specifically called to be created extraterritorially under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 25 May 2000 UNTS 227 Articles 3 and 4

[24] Mr. Yvan Roy, Senior General Counsel Criminal Law Policy at the Department of Justice, in the Committee hearings on the Bill noted that Canada was, at that time, going further than other countries had in this area in the following passage:

Mrs. Gagnon: Why do you make a distinction for sexual abuse cases, when it is well known that with other offences, the government does go ahead with extradition? You seem to make a distinction for child sexual abuse cases, and I think that is probably somewhat contrary to the U.N. Convention on the Rights of the Child. You make a distinction between the notion of "for consideration" and sexual abuse. I have the feeling you don't want to include all kinds of sexual abuse.

Mr. Roy: You are right: this proposal deals with sexual offences against children. It basically goes back to what Mrs. Torsney was saying. Canada is going farther than other countries in that respect. We are trying to protect children who are abused by Canadians. We are not broadening it enough to cover any offence that might be committed against a child abroad, whether we're talking about common assault or other types of similar offences. However, Canada is trying to open this up and thus go further than other countries have, by stating that, when such offences are committed, it is appropriate for us to take action. [emphasis added]

Bill C-27 An Act to amend the Criminal Code (child prostitution child sex tourism criminal harassment female genital mutilation House of Commons Standing Committee on Justice and Legal Affairs Evidence 35-2 (December 3 1996) Mrs. Gagnon and Mr. Roy at 1030

[25] The legislative history also seems to indicate that once the scope of section 7(4.1) was broadened the intent was also clear to apply it to all Canada’s nationals that found themselves abroad not just those temporarily travelling. As Mr. Roy stated

The amendments that we are talking about here deal with Canadian citizens. The particular organization to which they belong, whether they are diplomats members of the Canadian armed forces or simply travelling tourists is of no importance.

Bill C-27 An Act to amend the Criminal Code (child prostitution child sex tourism criminal harassment female genital mutilation) House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2, (December 3, 1996) at 1040

[26] As adverted to earlier initially going hand in hand with the broadened number of offences that were included in the provision were two requirements. Firstly, under section 7(4.2) prior to the institution of any proceeding under section 7(4.1) other that the offence of procuring there had to be a request for a prosecution from the officials of the state in which the conduct occurred. In addition under section 7(4.3) In addition, there was a requirement for the Attorney General to consent to prosecution under section 7(4.2).

[27] Having said that however the legislative history suggests that Parliament has never been prepared to completely defer to the law of the state in which the events occurred in determining if the conduct it was capturing was seen, by Canadian standards, as sexually exploitive of children.

[28] The debates made clear that the concept of requiring double criminality which is central to the law of extradition was not something that was incorporated into the proposed legislation even as its scope expanded. Moreover, while respect for territorial sovereignty was originally one of the important animators behind the then express legislative requirement for a request from the concerned foreign state it also appears that an equally large animator was the practical need in many cases for some level of co-operation being provided at an investigative level in these matters so as to make a proceeding viable. (ie, cases in which the victim was resident in the foreign state and unwilling or unable to come to Canada.) The following exchanges between Mr. Roy of the Department of Justice and Ms. Torsney and Mr. Ramsey in Committee highlight both points

Mr. Ramsay: Okay. Just to wrap up on this, then, I've had concerns about the ability or the inability of the government to enforce these new regulations or this new statute, these new laws, and now I see that this concern is going to be amplified by the fact that we're now limiting the complaint to coming through official channels from the other country. From my point of view, that is making it more difficult to address the sex tourism trade. Do you agree that it makes it more difficult to enforce this law?

Mr. Roy: Without being argumentative, I thought, frankly, Mr. Ramsay, that your problem was with the difficulty of enforcing this abroad, given that it's going to be difficult for Canada to gather the evidence. This mechanism in place that we are proposing through this amendment gives Canada a broader range.... More offences can be prosecuted on the basis of this amendment. Again, it's also giving Canada the mechanism to ensure that we are going to be able to control the process to some extent by having the Minister of Justice first receive the request from a foreign country. Generally speaking, the way the system works right now, you would have an extradition request being made by Thailand or the United States or Argentina to Canada, and it would be for Canada to take the person in this country and send the person back. Instead of doing this for those offences, given that you have heard evidence that foreign countries may not be interested in initiating an extradition, Canada would take jurisdiction for those matters. You have to take into account the sovereignty of those foreign states. We need to be able to go there and gather the evidence that is required for those prosecutions. If we don't have a request from a foreign state, we have no business going there and saying we have seized jurisdiction for something that has taken place in your country and now we want to be here and gather the evidence.

Mr. Roy: Under amendment G-1, a prerequisite at law is that the foreign state make a request to Canada for the prosecution to take place here. So in the case you have in mind, irrespective of whether the victim and the alleged offender are both Canadian, the bottom line is that it is for the sovereign state to make a decision. The crime took place within our jurisdiction and we're going to ask Canada to prosecute that case, even though we would be able to extradite the person. On that basis, Canada would take jurisdiction and prosecute the case in this country instead of sending the person back.

Ms. Torsney: It's certainly less onerous an issue for the other country to ask Canada to do this. What happens in the case where the Bahamas or somewhere else has a statute of limitations on these crimes? Does that make a difference?

Mr. Roy: You will see that amendment G-1 does not require double criminality. That means the offence that was committed abroad is an offence abroad as well as in Canada. In a case like the one you're talking about, I would think the argument would be raised in the Canadian court, but there is no requirement in the law the way it is to say a statute barred in the Bahamas therefore cannot be prosecuted in this country. There is no requirement for double criminality. Canada could seize jurisdiction on that basis. Say a Canadian has committed a crime that would be a crime in Canada and Bahamas has asked us to take on the case. We'll do it, and we can prosecute in this country. [emphasis added}

Ms. Torsney: Does that also –

Mr. Roy: My point is to say that I know the argument will be made.

Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2, (December 3, 1996) at 0955 and 1000 and following

[29] The twin factors of respect for territorial sovereignty and practical viability were also important factors in the initial resistance to efforts taken in 1997 to remove the need for a request from officials of the foreign state and the Attorney General’s consent. Reference in this regard should also be made to “Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, Motion, House of Commons Debates, 35-2, (April 7, 1997) at 9407 (Mr. Gordon Kirkby), “Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, 3rd reading, House of Commons Debates, 35-2, (April 14, 1997) at 9640 (Mr. Gordon Kirkby), Bill C-27 An Act to amend the Criminal Code(child prostitution, child sex tourism criminal harassment and female genital mutilation House of Commons Standing Committee on Justice and Legal Affairs, Evidence 35-2 (December 3 1996) (Mr. Roy at 1020 and 1025 and to Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2, (December 3, 1996) (Mr. Bellehumeur and Mr. Roy) at 1000

[30] It is of interest to note that the specific fact that different countries might have different ages of consent was a matter adverted to during the legislative process and it was apparent that it was contemplated that the provision would potentially capture conduct that was lawful in another country by virtue of a different ages of consent in another country. An example was touched on that involved a Canadian petitioning the foreign state to request prosecution in Canada although the conduct was lawful in the state in which it occurred by virtue of a lower age of consent there. On Dec 3 1996 Ms. Torsney and Mr. Roy had the following exchange:

Ms. Torsney: That's fine. That also means it doesn't matter if the age of consent in another country is lower than ours; if it's a crime in Canada it's a crime in Canada, and the person could petition the other government to let it be prosecuted in Canada.

Mr. Roy: Agreed.

Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2, (December 3, 1996) at 1000

[31] In 2002 Parliament subsequently revisited the requirement for a request from a foreign state and ultimately repealed 7(4.2) which created the need for this prerequisite regarding the offences other than procuring.

[32] In doing so the Justice Minister of the day Ms Anne McClelland indicated that the purpose of the amendment repealing 7(4.2) was to make it clear that Canada was prepared to capture conduct amounting to the specified offences engaged in by Canadian nationals occurring in other countries even without such a request from the country in which the conduct occurred. She made the following comments regarding the rationale for this last amendment:

Sexual tourism is a troubling and difficult area. The only truly effective response will be a global one where countries work together. What we're doing with the amendment we have before you is dealing with a gap that emerged out of a fact pattern in the country of Costa Rica. It was based on the interpretation of our law by the court in Costa Rica, and therefore we decided we would make it clear for foreign courts, for Canadians, for everyone, what our intent was in this area. As you're aware, there's a challenge here, because if someone, a Canadian, leaves this country and goes to Costa Rica, Thailand, or wherever to pursue young children in illegal sexual activities, one could either prosecute them in that country or prosecute them at home. Sometimes there have been Canadians prosecuted abroad for what we would broadly call sexual tourism. We decided that what we wanted to do, if a country decided not to prosecute, was to have the ability to prosecute here, if we felt the case could be made. What we are doing in this amendment is making it absolutely clear that a foreign country does not have to request that we prosecute. The confusion arose in the Costa Rican court. They thought there was a requirement, as I understand it, that the Costa Rican government had to make a formal request of us before we could prosecute at home. What we're doing is making it plain that we can prosecute. No formal request would have to come from any other country that we prosecute a resident of Canada here in Canada if we had the facts and if we thought or our provincial prosecutor thought they could make the case against the person. So either a foreign country can prosecute or, as it is absolutely clear, we can prosecute the person if the provincial prosecutor or provincial attorney general feels it is merited. [emphasis added]

Bill C-15A, Criminal Law Amendment Act, 2001 ”, House of Commons, Standing Committee on Justice and Human Rights, Evidence, 37-1 (October 2, 2001) at 1730 (Hon. Anne McLellan)

[33] The Applicant suggests that these comments were made in the context of a situation in which the principal of dual criminality applied. That certainly appears to be the case but Parliament in repealing the provision did nothing to legislatively limit its elimination to circumstances in which principles of dual criminality were applicable. Rather the only legislative limit Parliament chose to leave on the operation of the legislation as it currently stands was the need for the Attorney General’s consent to the institution of proceedings. This limit was also extended to the offence of procuring placing all the offences referred to in section 7(4.1) on the same footing.

[34] Traditionally an Attorney General’s consent is a matter that focuses on factors such as practical or evidentiary viability and broader questions of whether the given prosecution is in the public interest. While concern about principles of international comity may well in this context be a part of both of these sets of concerns it is difficult to avoid the conclusion that the amendment repealing 7(4.2) suggests that post 2002 a different role for these concerns was signaled. Concern for international comity seems to have moved from an express part of the legislation controlled by certain officials in other states to something that was now to be treated as a background factor to be taken into account as a matter of the administration of the legislation by Canadian officials and all offences covered by 7(4.1) were put on the same footing. In short, these concerns became more about the how of the legislation as opposed to the why of it.

[35] It seems to me then that an examination of the legislative discussion and context of the section also suggests that in enacting the provision as it currently stands Parliament was indeed motivated by a broad objective of deterring its nationals, however they came to be abroad from engaging in conduct anywhere in the world which was viewed by Canadian standards as sexually exploitive of children.

[36] There are a number of reasons why Canada would want to pursue such an objective internationally. Canada is entitled to demand the allegiance of its nationals be they citizens or permanent residents wherever they are in the world. Parliament was here only aiming the legislation its own not citizens of the world generally. See Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and section 7(4.1) of the Criminal Code supra at pg 181

[37] There is no doubt that generally, Canada and other countries refrain from extending the reach of their criminal prohibitions beyond their boarders except when dealing with special circumstances. A number of examples of this can be found in section 7 of our Code.

[38] The effective curtailment of what Canada views as sexually exploitive activity vis a vis children appears to be one such area that Parliament sees as a special circumstance. While Canada may have gone further in this legislation than some of its international obligations require it is also true to say that the material before me suggests that there is growing concern internationally regarding child exploitation. See Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and section 7(4.1) of the Criminal Code supra at 197-207. Special enforcement difficulties can arise in this context and they are only compounded when perpetrators have an ability to easily move between jurisdictions.

[39] One can understand why Parliament might be hesitant to condition the reach of section 7(4.1) upon principles of dual criminality. Such principles may well provide an escape valve for Canadian nationals in taking a child from Canada to a country for a sexual purpose which is criminal here but not so in the country of destination.

[40] In addition, the material before me suggests that this was a certain degree of concern about the effectiveness or commitment of certain countries in addressing such matters. See Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and section 7(4.1) of the Criminal Code supra pg 185, and “Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)”, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 35-2 (October 1, 1996) (Chair; Mr. Yvan Roy) at 1730

[41] While technically the onus may be on the Applicant to satisfy me as to what the object of the legislation is, I can say I am satisfied in light of the wording of the provision, its legislative discussion, and context, and the increasing international concern about child exploitation that the actual objective of this legislation is more likely than not the deterrence of Canadian citizens and permanent residents from engaging in what, by Canadian standards, is seen as exploitive sexual activity of children while abroad.

[42] I am also satisfied that its objective is not confined to short term travelers but relates to all Canadians however they come to be outside Canada. They all, as a result of their citizenship, have a duty of allegiance to and easy access to Canada. I am also satisfied that adherence to principles of international comity is not part of the section’s actual objective as of today although it undoubtedly of necessity remains a part of how the section will be administered.

[43] Having come to that conclusion let me turn to this case and the reasonable hypotheticals which the defence raises and argues as being activity without connection to the objective of the legislation.

[44] There can be no doubt that the case before me is at the heart of the section. It was conceded at the outset of the trial that Mr. V. was either a Canadian citizen or a permanent resident. The evidence at trial showed he was temporarily out of the country working. His conduct clearly amounted to sexual interference under our law. In addition, I am advised, for what it is worth, that Mr. V.’s activity in this case satisfies the requirement of dual criminality given that it arose in the United Arab Emirates and it amounted an offence there. What of other reasonable hypotheticals posed by the defence? They pose two.

[45] The first is the Canadian student who travels to France and becomes romantically involved with a 15-year-old French citizen and who engages in minimal physical activity perhaps as limited as a kiss on a consensual basis.

[46] The second is a child born in Canada and who leaves Canada with his parents when very young. He grows up in France and is a citizen there as well as maintaining his Canadian citizenship. He at 21 likewise become romantically involved with a 15-year-old French citizen and engages in minimal physical activity perhaps as limited as a kiss on a consensual basis.

[47] It is argued that neither of these situations are connected to the objective of section 7(4.1). It is said that there is no taking advantage of Canada as a safe haven. It is asserted that there is no exploitation or abuse involved here in French eyes as the activity is completely lawful in France where it appears the general age of consent is 15. It is said that there are issues of the comity of nations involved. Canada would be enlisting a French citizen who engaged in lawful activity against their will in a prosecution before Canadian courts in one instance and also prosecuting a French citizen for activity in France that was completely lawful and non-abusive or exploitive in French eyes. It is said, however, that these hypotheticals would fall within the reach of section 7(4.1) as sexual interference in light of the age difference between the parties and the Canadian age of consent, unlike that in France, being 16.

[48] It was conceded that these examples were reasonable hypotheticals for the purposes of this matter. I must say I have some lingering concerns about that. If the activity was as minimal as a kiss it might be highly debatable that that alone would satisfy the need found in the offence of sexual interference for a sexual purpose. In addition, the law’s grip on at least the dual citizen of France seems dubious as they could not be extradited given a lack of dual criminality. Given the minimal nature of the conduct and its consensual nature one would wonder how realistic it would be that such a matter would come to the attention of the authorities in Canada at all or if it did how realistically viable it would be without the complainant’s co-operation and/or the co-operation of the French state.

[49] It may well be however that to take this approach is to take too demanding a view of what can amount to a reasonable hypothetical for this purpose. Given the concession I intend to proceed to address them as such.

[50] I am not satisfied that in catching these fact patterns the legislation is capturing fact patterns that are, in the words of Bedford supra, not “connected” to the objective of the legislation as I have described it above.

[51] The conduct in question runs afoul of the standard of what Canadians see as exploitive sexual activity of children. It involves sexualized conduct with persons of tender years being under the aged of 16 by a person significantly older than they are. Both of the hypothetical accused persons being Canadian citizens fall within the class of persons aimed at. The legislation creates a vehicle for the vetting of a complainant which otherwise would not exist.

[52] Many may reasonably think, that in their starkest form, these hypotheticals, would represent ill-advised prosecutions for any number of reasons. It seems to me, however, that the conduct described technically falls within that which Parliament was attempting to deter, namely Canadian nationals, while abroad, engaging in activity that, on Canadian standards, is regarded as sexually exploitive of children. As a result, I am driven to the conclusion that it is impossible to be satisfied that the capturing these hypotheticals has no connection to the objective of Parliament underlying the section in issue.

[53] I would add that that is the only question for the purposes of constitutional analysis and determining the continuing functionality of the provision. Achieving actual justice under the administration of any valid law however involves much more than constitutional analysis. It is a completely separate question as to whether it would ever be appropriate to pursue such matters in their starkest form from the perspective of the proper exercise of prosecutorial discretion.

[54] While these examples give rise to a certain sympathy, and would do so even if they arose in Canada, I would also observe that the dual citizen has chosen to maintain the benefits of his Canadian citizenship which puts him in the position he finds himself in. In addition, if the hypothetical accused persons are aware of the legal obligation their citizenship places on them in this context they have simply flouted them. If they are not, that is a matter which, like other cases of mistake of law, can also be taken into account along with the other circumstances in terms of how the court deals with sentence should such a case ever in reality come before a Canadian court.

[55] In light of that conclusion, I do not need to address section 1 in this case except to say that the Crown conceded that if a breach was found in this matter it would be difficult to justify under section 1. Nothing I heard in her brief argument on section 1 would have convinced me otherwise.

[56] In addition, it may well be that this section could be read down in some fashion depending on the precise nature of breach found but since I have found none I do not propose to comment any further on that issue.

[57] As a result for all those reasons, I am dismissing the application brought by the defence in this case and I will now adjourn this matter in order to impose sentence.

Released: July 11, 2022 Signed: Justice W.J. Blacklock