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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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.

Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. W.S.

Before Justice David M. Paciocco – Ottawa, ON

Reasons for Decision

Released September 28, 2015

Counsel:

• Ms. K. McVey for the Crown
• Mr. C. Nahum for W.S., a young person

Decision

Paciocco J.

[1] Standing alone, the offence of sexual interference contrary to section 151 of the Criminal Code does not include a "consent element," such as the one that forms part of the actus reus for the offence of sexual assault, contrary to section 271. This is because section 151 addresses the sexual exploitation of children. The exclusion of consent is based on concern that children generally lack the maturity to make an integral decision to voluntarily choose to consent to sexual activity, something potentially harmful to them, with a person holding a balance of power over them, such as adults.

[2] Section 150.1 does, however, bring the issue of consent into issue in a section 151 prosecution in some cases where there is not apt to be a material power imbalance. Of particular relevance to this case, section 150.1 provides in relevant part:

(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, 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 exploitive of the complainant; or

(iii) the accused is married to the complainant.

[3] It is alleged in this case that at the time of the alleged offence W.S. was 16 years of age. The evidence before me is that the complainant, C.B., was 15 years of age. W.S. is therefore less than 5 years older than the complainant and there is no relationship of dependency or exploitation at play. The issue of consent is therefore a live one before me, not only on the section 271 charge of sexual assault, but also the section 151 charge of sexual interference.

[4] Counsel for W.S., wanting to ensure that the ground-rules were clear before electing whether to call defence evidence about consent, raised the question of who bears the onus on the issue of consent under section 150.1, given that section 150.1 refers to a "defence" of consent. Ordinarily, where an affirmative[1] or procedural defence[2] applies, depending on which defence is used, the accused bears either an evidentiary or legal burden of proof.[3] Counsel for W.S. contends that, in spite of this, where consent does arise as an issue in a sexual interference prosecution, the ordinary burdens of proof apply requiring the Crown to disprove consent beyond a reasonable doubt.

[5] The Crown offered helpful submissions in framing the debate by suggesting that there are two ways to view section 150.1. First, section 150.1 can be seen as an exception available to the accused to put the issue of consent into issue, as a defence. On this view, section 150.1 would impose a burden of proof on the accused relating to "consent."[4] Alternatively, section 150.1 can be understood to be a provision that, for some offences in some circumstances, adds consent to the elements of the offence the Crown must prove. Specifically, where the accused shows that the circumstances set out in subsections 150.1(2)-(2.2) apply, to succeed in prosecuting section 151, 153 or 173(2) offences, the Crown must also prove that the complainant did not consent.

[6] The proper approach to statutory interpretation was identified by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. R., 2002 SCC 42, at para 26:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This issue is not resolved, in my view, by applying the grammatical and ordinary reading of the phrase, "defence that the complainant consented." The term "defence" does aptly describe affirmative and procedural defences, but it is also used notoriously in criminal law to refer to cases where the accused counters a prosecution by contending that the Crown has not proved an element of the offence. It is common, for example, to hear of the "defence of identity" where identity is in issue, even though the Crown bears the burden of proving identity. It is even common to hear reference to the "defence of consent" in sexual and other assault cases notwithstanding that the Crown bears the burden of proof on that issue beyond a reasonable doubt: see, for example, the sexual assault case of R. v. Zhao, at para 4, and the aggravated assault decision in R. v. McDonald, 2012 ONCA 379, at para 1. This issue must necessarily be resolved by examining the scheme of the Act, the object of the Act including foundational criminal law principles, and the intention of Parliament. The "intention of Parliament" has been described by Justice Cromwell as "a shorthand reference to the intention which the court reasonably imputes to Parliament."[5]

[7] The Crown suggested that what makes it possible to treat section 150.1(2-2.2) as an exception available to the accused to bring consent into issue, is the structure of the Act, read as a whole. Specifically, sections 151, 152 and 173(2) set out the elements of the relevant offences, and do not include "non-consent" as something that must be established. In effect, the suggested theory posits that offence provisions should be treated as the exhaustive legislated source for elements of an offence. This thinking does not commend itself. A statute is to be read as a whole, and there is no reason why two or more provisions cannot work in tandem to identify the elements of an offence, as they apply in different or particular circumstances. This is done, for example, in section 85(1). This provision makes it an offence to use a firearm while committing an indictable offence. It is only through the combination of that section and the provision defining the alleged indictable offence that the elements of the offence required to be proved by the Crown in a section 85(1) prosecution can be identified.

[8] Ultimately, there are a number of material reasons why it is problematic to read section 150.1(2-2.2) as providing an affirmative defence.

[9] First, subsections 150.1(2-2.2) apply not only to sections 151, 152 and 173(2). They apply, as well, to sexual assault prosecutions under section 271, where non-consent is specifically made an element of the offence. It cannot be said in the case of section 271 that subsections 150.1(2-2.2) operate as exceptions available to the accused to put the issue of consent into issue, since consent is already an element of that offence.

[10] Second, as defence counsel pointed out, it is common for young offenders to be charged with sexual offences involving those youthful complainants who are protected by sections 151, 152 and 173(2). This is because the typical sexual contact experienced by a person protected by these provisions is likely to involve another young person. It is clearly in the public interest to regulate sexual conduct involving young persons, even criminally. It does not seem to be in the public interest, however, to have a provision that can be used to prosecute sexual offences involving young people more aggressively than sexual activity between adults. That would be the result of requiring young persons who are close in age to a complainant to prove consent in order to avoid conviction, while adults accused of committing sexual offences against other adults have the protection of requiring the Crown to prove non-consent beyond a reasonable doubt. This is not an intention that can reasonably be imputed to Parliament. Meanwhile, the manifestly reasonable intention of removing the need to prove non-consent of a minor where there is a material power imbalance between the minor and the accused actor can fully be achieved by treating sections 150.1(2-2.2) as working in tandem with the relevant provisions to require the Crown to prove non-consent, only where there is no material power imbalance at play.

[11] Third, these provisions should be interpreted in light of the presumption of innocence. Of course, both evidential and persuasive burdens are placed on the accused on some issues, but this is exceptional. It is one thing, in my view, to expect an accused person to show that they qualify to have consent placed in issue by section 150.1(2-2.2). It is quite another to require the accused to prove the state of mind of another person in order to avoid conviction. The language and context is not clear enough, in my view, to infer that Parliament intended to impose a burden on the accused relating to consent.

[12] Finally, interpreting section 150.1 as imposing the burden on the accused relating to consent can produce inconsistent verdicts. If section 150.1 imposes a burden on the accused, then in cases where the evidence relating to consent remains unclear or non-existent at the end of a trial, an accused person could be convicted of an offence under section 150.1 but acquitted of the offence of sexual assault as a result of inconsistent findings relating to the same element of the offence, consent.

[13] Perhaps, not surprisingly, the parties were unable to identify any authority supporting the view that a burden rests on the accused to prove consent, where consent is put into issue pursuant to sections 150.1(2-2.2). There are cases to the contrary. In R. v. Thompson, for example, the accused was charged with both sexual assault contrary to section 151 and sexual assault contrary to section 271. He raised the defence of mistake of fact relating to the age of the complainant, who he claimed he thought to be 14 years of age or older, the "age of consent" at the time. In setting out the law Justice Hill commented at para 59 that even if this defence succeeded, the accused could still be convicted "if the prosecution establishes that the 'under-age' complainant was not consenting to the activity in question, in the sense of voluntary agreement and participation." In R. v. J.J.A., the accused was acquitted by Justice De Filippis of both sexual assault and sexual interference charges involving the complainant M.R., who was under 14 but less than 2 years younger than the accused. The reason for the acquittals, offered at para 67 of the decision, was "[i]t has not been proved beyond a reasonable doubt that the defendant forced MR to participate in these sexual acts."

[14] I am therefore persuaded that to succeed in prosecuting, either under section 151 or section 271 where section 150.1(2.1) applies, the Crown must prove the absence of consent by the complainant beyond a reasonable doubt.

Dated in Ottawa this 28th day of September 2015

Justice D.M. Paciocco

Footnotes

[1] Affirmative defences include justifications (such as self-defence) and excuses (such as necessity), introduced to resist conviction in spite of the fact that the Crown has proved the elements of the alleged offence.

[2] Such as entrapment or double jeopardy.

[3] See R. v. Stone, [1999] 2 S.C.R. 290 for a discussion of ordinary defences where the defence succeeds where there is a reasonable doubt about its application, and reverse-onus defences where the defence succeeds only if proved on the balance of probabilities.

[4] The Crown offered alternative views on what that burden might be. If section 150.1 qualifies as a "statutory exception" within the meaning of section 794(2) it would impose a legal burden on the accused to prove consent on the balance of probabilities. If section 150.1 is seen as creating an ordinary defence, the accused bears the evidentiary burden of showing an air of reality to the possibility of consent, before the Crown is obliged to disprove consent beyond a reasonable doubt.

[5] R. v. Dineley, 2012 SCC 58, at para. 44, per Cromwell J. dissenting in the result.