WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.B., 2015 ONCA 803

DATE: 20151123

DOCKET: C57790

Feldman, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.B.

Appellant

Megan Savard and Rebecca McConchie, for the appellant

M. David Lepofsky, for the respondent

Nancy Dennison and Moiz Rahman, for the intervener, Attorney General of Canada

Heard: April 27, 2015

On appeal from the order of Justice Bruce A. Glass of the Superior Court of Justice, sitting as a summary conviction appeal court, dated October 3, 2012, with reasons reported at 2012 ONSC 5587, allowing the appeal from the stay of proceedings entered on June 17, 2011, by Justice Lisa Cameron of the Ontario Court of Justice.

Feldman J.A.:

Introduction

[1] The appellant was 21 years old when he began dating the 15-year-old complainant, MB. Their romantic relationship lasted 11 months. In the latter part of the relationship, they engaged in sexual intercourse. After MB became pregnant, a CAS worker reported the appellant to the police for having sexual relations with a minor. Soon after, MB had an abortion and the relationship ended.

[2] The appellant was found guilty of sexual touching under s. 151 and sexual assault under s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.[^1] Under s. 150.1 of the Code, no defence of consent to non-exploitative sexual contact was available to the appellant, because of the 6-year age difference between him and MB. The trial judge concluded, however, that the appellant had no mens rea for the offence because the finding of guilt was based only on the age difference; MB consented to the sexual relationship and the appellant did not exploit her. The trial judge concluded that in those circumstances, s. 150.1 violated the appellant’s s. 7 Charter rights and that the violation could not be saved under s. 1. As a result, the trial judge stayed the proceedings under s. 24(1) of the Charter.

[3] On the summary conviction appeal by the Crown, the summary conviction appeal judge held that s. 150.1 of the Code does not contravene s. 7 of the Charter. He set aside the stay and remitted the matter to the trial judge for sentencing. The trial judge imposed a conditional discharge.

[4] The appellant seeks leave to appeal the decision of the summary conviction appeal judge and asks this court to find that s. 150.1 of the Code contravenes s. 7 of the Charter. He submits that s. 150.1 is overbroad and therefore deprived him of his liberty interest in a manner that did not accord with the principles of fundamental justice and cannot be justified under s. 1. He submits that the appropriate remedy for this court is to sever the 5-year close-in-age exception to the defence of consent to non-exploitative sexual contact with a person under 16 contained in s. 150.1(2.1)(a)(i), or in the alternative, to grant him an individual constitutional exemption by granting a stay under s. 24(1) of the Charter.

[5] As I explain below, I would grant leave to appeal, but I would dismiss the appeal because s. 150.1 of the Code is not overbroad and therefore does not breach the Charter.

Facts

[6] The trial judge found the following facts: The appellant and MB met at a dance studio when he was about 17 and she was about 11 years old. They were both good dancers. They danced as a pair for four years and became close friends. In August 2009, after leaving the dance studio, they began to date and established a boyfriend/girlfriend relationship which lasted 11 months. The trial judge found that the relationship was positive. In March 2010, at MB’s insistence, the two began having sexual intercourse. MB testified that the appellant did not want to have sex until she was 16, but she was persistent because she was feeling rejected.[^2] In May, the appellant gave MB a promise ring.

[7] MB explained in her evidence that after her mother died that winter, she moved out and began living on her own when her father commenced a relationship with someone she knew from school. MB worked part-time at a restaurant.

[8] MB became pregnant in late spring. The appellant did not know that MB had stopped using birth control. He felt they were too young to have a family, wanted her to have an abortion, but would support her in her choice. She had the abortion in July. MB testified that she was suicidal the next day. The appellant left that night and sent her a text saying they needed time apart. That was the last time she saw him. She had just turned 16.

[9] The trial judge found that the relationship between the appellant and MB was loving and respectful. She found that MB was a mature young woman, particularly for age 15; that she was intelligent, resourceful and independent; and that she was helped by the appellant in meeting some of the life challenges with her parents that she had to deal with.

[10] MB had a CAS worker who reported her relationship with the appellant to the police. The police followed up with MB in July, after the abortion. The trial judge stated that at that time MB felt hurt and was reconsidering her view of the relationship. She told the officer that although the appellant would have thought that all of their intercourse was consensual, she only consented the first time. The trial judge, however, rejected that assertion by MB, finding it inconsistent with her evidence about the relationship. The trial judge found that MB’s evidence about her state of mind following the abortion cast doubt on her suggestion that the appellant took advantage of her. The trial judge then concluded:

I have considered [MB’s] and [AB]’s relationship, including the pregnancy, independently of their opinions about it. In my view, there is nothing about their relationship, good or bad, that necessarily comes about as a result of the fact that they were more than five years apart in age or that [MB] was 15. There is no physical or emotional harm to [MB] that could fairly be attributed to those facts and I find that there was no element of exploitation in their relationship. Each of them, and more importantly to this proceeding [MB], was making informed choices about their sexual activity. This was essentially conceded by the Crown quite fairly in submissions.

[11] Following findings of guilt on both charges, the appellant moved for a stay of the proceedings under s. 24(1) of the Charter, alleging that the application of the law violated his s. 7 Charter rights, or in the alternative, a declaration that s. 150.1 of the Code be declared invalid as contrary to s. 7 and not saved by s. 1.

[12] The trial judge addressed the Charter issue. She found that the purpose of the law that allows young people under 16 to consent to sexual activity only with other people who are no more than five years older and are not exploiting them is to protect young people under 16 from exploitation. She found that age 16 is a reasonable threshold for criminal activity, but in this case, there was no criminal activity by the appellant because he had no criminal intent and no ability to defend himself. The only thing that made him guilty was his age. She concluded that although s. 150.1 “would usually produce constitutional results, … in the rare combination of facts and law in this particular case it does not. Thus the appropriate remedy would be under Section 24(1) of the Charter. Given my views about [the appellant’s] mens rea I feel obliged to vacate the findings of guilt and stay the proceedings.”

[13] The Crown appealed to the summary conviction appeal court. That court found that the trial judge erred in law by finding that s. 150.1 infringed the Charter and by imposing a stay under s. 24(1). The summary conviction appeal court judge stated that the trial judge erred by finding no mens rea because the appellant knew how old MB was, which was sufficient to engage s. 150.1 of the Code and preclude a defence of consent. Further, had the law been found to be unconstitutional, the correct remedy would have been to strike down the law under s. 52 (1) of the Charter rather than impose a stay on a case-by-case basis. He concluded that the trial judge effectively rewrote the law for the appellant. He set aside the stay and referred the case back to the trial judge for sentencing. The trial judge imposed a conditional discharge.

Issues

[14] This appeal raises the following issues:

1. As this appeal is from a summary conviction appeal decision, should leave to appeal be granted under s. 839 of the Code?

2. If leave to appeal is granted, does s. 150.1 of the Criminal Code breach the appellant’s s. 7 Charter right to liberty in a manner that is overbroad and therefore not in accordance with the principles of fundamental justice?

3. If there is a s. 7 breach, can the legislation be saved under s. 1 of the Charter?

4. If not, what remedy, if any, should be granted to the appellant?

Analysis

Issue 1: Leave to appeal

[15] In my view, this is a case where leave to appeal should be granted. I note that although this is the second level of appeal, the first appeal to the summary conviction appeal court was a Crown appeal. Therefore, this is effectively the first appeal by the appellant. The constitutionality of s. 150.1 of the Code is an issue of law of significance to the administration of justice generally: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 33. I would grant leave to appeal.

Issue 2: Does s. 150.1 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) breach s. 7 of the Charter?

[16] Subsection 150.1(1) of the Code provides that where an accused is charged with certain sexual offences, including sexual assault, in respect of a complainant under the age of 16 years, “it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.” Subsection (4) provides the defence of mistake of age where the accused “took all reasonable steps to ascertain the age of the complainant.” The mens rea of such offences is therefore committing the alleged actus reus with a person under 16 unless the accused believed the complainant was 16 or over and took all reasonable steps to ascertain that belief.

[17] In the Parliamentary debates concerning this provision, the age below which consent is not a defence to a sexual offence charge was referred to as the “age of protection”. Subsection 150.1(1) stated:

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[18] Subsections 150.1(2) through 150.1(2.3) provide a number of exceptions to s. 150.1(1) where a defence of consent remains available, including certain transitional exceptions resulting from changes to the legislation in 2008 and 2015.[^3] In particular, subsections (2) and (2.1) set out what are referred to as the “close-in-age exceptions”, which may apply where the complainant is 12 or 13, or 14 or 15. The close-in-age exceptions provided:

(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

(2.1) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused

(i) is less than five years older than the complainant; and

(ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or

(b) the accused is married to the complainant.[^4]

[19] It is s. 150.1(2.1)(a)(i) that is challenged by the appellant in this case.

[20] The appellant submits that s. 150.1, with the limited close-in-age exception, violates s. 7 of the Charter. Section 7 of the Charter states that:

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.

[21] In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court of Canada stated that three principles of fundamental justice “have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object” (para. 72). In order to determine whether a law does or does not accord with these principles, the court compares the object or purpose of the law with the effects of the law as drafted.

[22] The appellant says that the law deprives him of his liberty interest because of the potential penalty of incarceration upon conviction.[^5] He submits that the law does not accord with the principles of fundamental justice because it is overbroad in its application to non-exploitative sexual activity between a person who is under 16 and an accused who is more than 5 years older.

[23] In Carter, the Supreme Court explained how a court should assess overbreadth under s. 7:

[85] The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object: Bedford, at paras. 101 and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population. A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical” may therefore be overbroad (see Bedford, at para. 113). The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature. The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled. [Emphasis added.]

[24] Since the argument of this appeal and just prior to the release of these reasons, the Supreme Court released its decision in R. v. Moriarity, 2015 SCC 55, where the court discussed the principle of overbreadth in the context of a law where the liberty interest was affected.

[25] In Moriarity, Cromwell J. explained further the importance of identifying and articulating the purpose or object of the impugned law in order to assess whether there is a disconnect between its purpose and its effects. The effects of the law arise out of the means the law uses to achieve its purpose (paras. 24 and 27):

The objective is identified by an analysis of the provision in its full context. An appropriate statement of the objective is critical to a proper overbreadth analysis. In general, the articulation of the objective should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms. (para. 26)

[26] He also makes a number of other clarifying points:

1. The law cannot be defined too generally or too narrowly because each way will effectively dictate whether the law is found to be overbroad (para. 28);

2. The overbreadth analysis is not focused on the propriety of the objective, but assumes that the legislative objective is appropriate and lawful (para. 30);

3. The main source for determining the purpose is the “text, context and scheme of the legislation”, and secondarily “extrinsic evidence such as legislative history and evolution” including statements of intention made in the legislature (para. 31); and

4. The law’s objective should generally be identified and stated by the court in a manner that is succinct and precise (para. 29).

[27] The first step in the overbreadth analysis is therefore to identify the purpose of the impugned provision.

The parties’ submissions

[28] The appellant submits that there are two purposes for the legislation: 1) to protect young people from sexual exploitation; and 2) to preserve the ability of young people to have non-exploitative sexual contact. He argues that in this case, as the trial judge found there was no sexual exploitation, the effect of the law was to criminalize his conduct beyond what the law intended, as well as to impede the complainant’s ability to have a non-exploitative sexual relationship with him.

[29] The appellant attacks the close-in-age exception as the portion of s. 150.1 that makes the section overbroad. He submits that by making the 5-year defined age difference a limit on the defence of consent for non-exploitative sexual contact, the law criminalizes conduct – non-exploitative, consensual sex between a child aged 16 or younger and an adult more than 5 years older – that has no connection with its purposes. In support of his submission, the appellant points to the critical comment of one Member of Parliament during the 1987 debate on a predecessor version of this provision. He also points to some evidence before Parliamentary Standing Committees in 2007 and 2008 that age is an imperfect proxy for exploitation and that age disparity does not necessarily match life experience and maturity.

[30] The appellant argues that these concerns came to fruition in this case, where the trial judge found that the relationship between the appellant and MB was not exploitative, yet the judge had to convict him of the offence.

[31] The respondent Crown and the intervener, the Attorney General of Canada, both argue that the appellant’s description of the purpose of the section is too narrowly drawn. The purpose is not merely to protect against actual exploitation that may occur in a particular case. The AG Canada describes the provision as “part of a broader legislative scheme designed to protect all young persons from involvement in any kind of sexual activity with adults.”

[32] It explains the rationale for protecting children from sexual activity with adults in the following very cogent passage from its factum:

This protection is necessary because adults are in a position to use undue influence, persuasion and manipulation to secure a young person’s consent to sexual activity as a result of the inherent power imbalance between young persons and adults. Young persons who are involved in sexual activity with adults are also at greater risk of adverse health and psychological consequences, including pregnancy and sexually transmitted diseases, given that young persons are less likely to appreciate the consequences of their actions and protect against them.

[33] The AG Canada explains that this legislative scheme originated in the 1980s, when the reports of two legislative committees led to the enactment of new offence provisions in the Criminal Code designed to protect children. Those two reports were the Report of the Committee on Sexual Offences Against Children and Youths (Ottawa: Minister of Supply and Services Canada, 1984), known as the Badgley Report, and the Report of the Special Committee on Pornography and Prostitution (Ottawa: Minister of Supply and Services Canada, 1985), known as the Fraser Committee Report.

[34] The new offences, ss. 151 and 152 of the Code, came into force in 1988, together with s. 150.1. While the age of protection for a sexual assault charge was already 14, the new offences expanded the forms of sexual conduct that could result in criminal charges, and the effect of the overall scheme was to protect children 14 and under from all sexual contact with adults.

[35] In 2008, Parliament increased the age of protection from 14 to 16 years old. It also enacted the 5-year close-in-age exception to enable 14 and 15 year-olds to have non-exploitative consensual sexual contact with peers.

[36] The respondent and intervener submit, based on the legislative history as a whole and excerpts from House of Commons debates, that the age of protection was raised from 14 to 16 to achieve three goals: 1) to establish a clear age below which children would be off-limits to adults for sexual activity; 2) to better protect 14 and 15 year-olds from undue influence, persuasion and manipulation by adults to engage in sexual activity, given the inherent power imbalance between adults and children, and to thereby promote the healthy development of young persons; and 3) to bring Canada into line with other countries that had enacted 16 as the age of protection. This related in part to the problem of international sexual predators and sexual tourism, including on-line predators. The respondent adds that the legislation also: 4) facilitates the effective prosecution of sex offenders by removing the need for the child to testify; and 5) protects the freedom of teenagers to experience and develop sexual autonomy with age-appropriate peers.

[37] The close-in-age exception is consistent with and forms part of the broader purpose of the legislative scheme. It allows teenagers to engage in sexual experimentation and relationships with peers whom they would encounter in the course of normal teenage activities, while continuing to protect them from the harms associated with sexual approaches by adults.

The purpose of the law

[38] In my view, the appellant’s characterization of the purpose of s. 150.1 does not bear scrutiny and is too narrowly drawn. The purpose is apparent from the words of the legislation, supported by statements made by the government when the legislation was introduced. Parliament’s intention is not simply to prevent sexual exploitation of children or even potential sexual exploitation of children, although those are certainly two of the law’s important effects. The purpose of the law, stated succinctly, is to protect children from sexual contact with adults or the invitation to have sexual contact by adults. The close-in-age exceptions reflect Parliament’s view that the inherent power imbalance between adults and children vitiates consensual sexual relations between them.

[39] In order to achieve the objective of protecting children, the means Parliament chose was to draw a bright-line age of protection of 16 years and to carve out a five-year close-in-age exception for non-exploitative conduct, where the defence of consent would be available.

[40] The Supreme Court has long recognized that Parliament may use reasonable age criteria to implement policy: see e.g. A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at para. 110, per Abella J.[^6] Further, it is not appropriate for courts to second-guess Parliament’s determination, in this case, of the appropriate age of protection of children from sexual contact with adults, as long as the age chosen is a reasonable one: see e.g. Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 57, per McLachlin C.J.

[41] Although these propositions are frequently discussed in the context of a s. 15 or a s. 1 Charter analysis, the Supreme Court observed in R v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, at para. 4, “The task of the Court in relation to s. 7 of the Charter is not to micromanage Parliament's creation or continuance of prohibitions backed by penalties. It is to identify the outer boundaries of legislative jurisdiction set out in the Constitution.” The method for that identification in the context of assessing overbreadth under s. 7, by comparing the purpose with the effects of the law, has now been further refined by the Supreme Court in Bedford, Carter and Moriarity.

[42] I note that there are a number of other contexts in which legislatures use age-based criteria to achieve their interest in protecting children. The need for society, through government and the courts, to protect children is recognized, not only through the criminal law, but in the family context and is manifested in a number of laws and doctrines. In custody and child support matters, courts are to be guided by the best interests of the child, while child protection orders under child welfare legislation are based on whether a child is found to be in need of protection. In both cases, the applicable legislation defines a “child” in terms of age: see e.g. Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 18(2); Child and Family Services Act, R.S.O. 1990, c. C.11, s. 3(1). The applicability of these doctrines and laws does not depend on the attributes of a particular child, such as maturity or independence: see, on this point, McLachlin C.J.’s concurring opinion in A.C., at paras. 143-145.

[43] It was reasonable for Parliament to choose the age of 16 as the age of protection from sexual contact with adults. The age was raised from 14 in part because of evidence that children between 14 and 16 were being targeted by on-line predators and others, and because Canada had become an outlier by having a lower age of protection than other countries, thereby attracting international predators.

[44] Similarly, Parliament was entitled to create a close-in-age exception for non-exploitative sexual contact between teenagers and their peers, and again to draw a reasonable line of age difference for teenagers to have appropriate relationships, including sexual relationships, with other young people up to, in the case of a 15-year-old, age 20. This exception was created for the benefit of the teenagers that Parliament sought to protect.

[45] For an adult to suggest that by excluding him from the close-in-age group, Parliament has made the law overbroad, is to misunderstand the protective purpose of the law. As I stated above, the protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

[46] Once the object of the law is correctly understood, it is clear that the sexual relationship between the 21-year-old appellant and the 15-year-old complainant fell within the type of conduct that this legislative scheme is intended to address.

[47] The appellant’s argument that he should not be caught by the legislation because he did not exploit the complainant effectively seeks to equate his position with that of Gloria Taylor in Carter, a person whom the Supreme Court of Canada found was wrongly included in and stigmatized by the legislation, there as “vulnerable”, here as “exploitative”. As I will explain, I reject this parallel.

[48] In Carter, the appellants challenged ss. 14 and 241(b) of the Code, the prohibitions on assisted suicide. Those sections made it an offence to aid or abet a person who commits suicide or to inflict death on a person with the person’s consent. The appellants submitted that the sections infringed the s. 7 rights to life, liberty and security of the person of certain individuals seeking to commit physician-assisted suicide.

[49] In order to assess whether the laws against assisted suicide were overbroad, arbitrary, or grossly disproportionate, the court had to first determine the object of the impugned laws. At para. 78, the court observed, based on its decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, that its jurisprudence required it to define the object of the law precisely for the purposes of s. 7, and to confine the object of the law “to measures directly targeted by the law”.

[50] Based on those principles, the court rejected the government’s submission that the purpose of the law was “to preserve life, whatever the circumstances”, as that formulation went beyond the ambit of the provision. The court concluded that “the direct target of the measure is the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness.”

[51] Once the purpose of the law was determined, the question was whether the law was overbroad in relation to its purpose, that is, whether the means Parliament chose to achieve that purpose affected the s. 7 rights of some individuals “in a way that has no connection with the mischief contemplated by the legislature” (para. 85). The court concluded, at para. 86, that the law was overbroad because “not every person who wishes to commit suicide is vulnerable”. The appellant Gloria Taylor was such a person: the evidence established that she was not vulnerable and was able to make her own decisions.

[52] The court rejected the argument that because it was too difficult to conclusively identify the vulnerable, the law was not overbroad by simply protecting everyone who was “potentially vulnerable”. Adopting its position from Bedford, the court held that this kind of argument would be more appropriately addressed as part of the s. 1 analysis.

[53] In my view, the result in Carter is not applicable here for three reasons.

[54] First, having found that the purpose of the law is not just to prevent sexual exploitation of children, but to protect them from sexual contact with adults because of the power imbalance and the consequences that flow from that, s. 150.1 does not affect the appellant’s right to liberty “in a way that has no connection to the mischief contemplated by the legislature.” Therefore, the premise that the appellant is not caught by the purpose of the legislation distinguishes this case from Carter.

[55] Second, in Carter, although the assisted suicide provisions of the Code applied on their face to all persons, the court held that they were directed at a much more limited protected target group: vulnerable persons who could be induced to commit suicide at a time of weakness. Defined in that way, inclusion in the group depended on vulnerability.

[56] In contrast, in the case of s. 150.1, Parliament has specifically crafted and tailored its purpose and application to protect a specific group of people – children – and has done it by reference to age and age proximity. There is no vagueness or judgment call in the applicability of the provisions to all members of the defined group of children.

[57] Third, in Carter, the Supreme Court was analyzing the s. 7 rights of individuals who argued their rights were infringed by needlessly being included in the protected group. Here, the appellant is not a child in the protected class asserting that he is mature enough to make his own sexual choices, and therefore does not need the law’s protection. Rather, he is a person targeted by the legislation as one from whom the protected class members require the legislated protection. Simply put, the appellant’s position is not comparable to Ms. Taylor’s position in Carter.

[58] Finally, I would add this. While deference is owed to trial judges on findings of fact, in this case, the trial judge made findings about exploitation and harm to the complainant that were not relevant to guilt or innocence under s. 150.1 of the Code. Although the trial Crown conceded the point, in my view, the trial judge erred in her interpretation and application of s. 150.1 and that error undermines those findings.

[59] The trial judge found that there was no exploitation here and that there was no physical or emotional harm to MB that could be attributed to the age difference between her and the appellant. She further found that MB was a mature young woman, particularly for age 15, who demonstrated independence and capability, and who made informed choices about sexual activity. Finally, she rejected MB’s suggestion that the appellant took advantage of her, attributing the suggestion to the hurtful aftermath of the end of the relationship.

[60] In making these findings, the trial judge failed to consider and address the fact that the complainant was a 15-year-old teenager living on her own, who had recently lost her mother and become estranged from her father. She had CAS involvement, presumably because she was living on her own. She was in a relationship with a young man 6 years older than herself. She pressured him to have sex with her because she was feeling insecure in their relationship. Mention was made in her evidence of going off the pill and not using condoms, but using the rhythm method of birth control, which resulted in the pregnancy. She had an abortion, and the relationship broke up. There was also reference in the evidence to pressure by the appellant’s mother on MB to have the abortion.

[61] This 15-year-old young woman dealt with many challenges that most teenagers hopefully do not have to face. To suggest that her apparent ability to do so meant that she did not need protection from the power imbalance inherent in a relationship with a man six years older reflects a misunderstanding of the purpose of s. 150.1.

[62] In my view, the trial judge misunderstood the protective purpose and intended effect of the law, which caused her to err in her application of the law to the facts. Although the appellant may not have intended to exploit the complainant, she clearly suffered emotional and psychological harm from engaging in a sexual relationship with him. This would not have occurred had she received the protection the law intended.

Conclusion

[63] In my view, s. 150.1 does not breach s. 7 of the Charter. Although the appellant’s liberty interest was impinged, that impingement was in accordance with the principles of fundamental justice. In particular, s. 150.1 is not overbroad in its application. As there is no breach of s. 7, and no need to consider s. 1, there is also no need to address the issue of remedy.

[64] I would dismiss the appeal.

Released: “KF” NOV 23, 2015

“K. Feldman J.A.”

“I agree. G. Pardu J.A.”

“I agree. David Brown J.A.”

[^1]: The conviction under s. 151 was stayed under R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. [^2]: The appellant knew that MB was 15. There was an issue whether he knew that the age of consent was not 14 but 16. [^3]: The latter change came into force after this appeal was argued but plays no role in the determination of this appeal. [^4]: The marriage exception has now been repealed. [^5]: The appellant received a conditional discharge, and at the time of his offence, s. 271 had only a maximum term of imprisonment. The offence was amended in 2012 to add a mandatory minimum where the complainant is under the age of 16 and the Crown proceeds summarily. This mandatory minimum was increased to 6 months in 2015. [^6]: [110] Age distinctions have frequently been upheld by this Court (see Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, 1990 61 (SCC), [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, 1990 62 (SCC), [1990] 3 S.C.R. 483; and Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570). (But see Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 12 (SCC), [1991] 2 S.C.R. 22.) They are currently employed to determine when a person can marry, vote, drive, consent to sexual intercourse and sell property. As noted by McLachlin C.J. in Gosselin, it must be recognized that “age‑based distinctions are a common and necessary way of ordering our society” (para. 31). In the context of s. 15 of the Charter, McLachlin C.J. has commented that while “all age‑based legislative distinctions have an element of this literal kind of ‘arbitrariness’”, this alone does not invalidate them “[p]rovided that the age chosen is reasonably related to the legislative goal” (Gosselin, at para. 57).