COURT FILE NO.: 12819/11

DATE: 2012-10-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

A.B.

Respondent

Jin Won Kim, for the Crown

John Olver, for the Respondent

HEARD: August 22 & October 3, 2012

justice b. glass

SUMMARY CONVICTION APPEAL BY THE CROWN FROM A STAY OF PROCEEDINGS PURSUANT TO SECTION 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS

THERE IS A BAN ON PUBLISHING THE NAME OR IDENTITY OF THE COMPLAINANT OR INFORMATION THAT MIGHT IDENTIFY THE PERSON

[1] On July 21, 2011, Justice L. Cameron stayed findings of guilt and the proceedings for counts of sexual assault and sexual touching after finding that the defendant had no mens rea for such offences.

[2] The defence asked the trial court to rule s. 150.1 of the Criminal Code invalid and to strike it down or in the alternative to read it down for a rebuttable presumption of harm or exploitation.

[3] The trial judge found there was no physical or emotional harm to the complainant and no exploitation.

[4] The trial judge concluded that although s. 150.1 of the Criminal Code for the most part would be applicable to persons charged with these offences, that was not so for the defendant here was concerned because he had no mens rea to commit the offences.

[5] In analyzing the case, the trial court found that s. 150.1 of the Criminal Code infringed s. 7 of the Charter and the remedy was a stay of proceedings pursuant to s. 24(1) of the Charter. S. 52 of the Charter was at the heart of the decision as well.

Issues

[6] Does s. 150.1 of the Code infringe s. 7 of the Charter?

[7] Does the trial decision in effect make sexual assault a specific intent offence?

[8] Does the trial court decision create a constitutional exemption improperly?

Analysis

[9] The defendant and the complainant had a sexual relationship that resulted in a pregnancy. The complainant was 15 years of age. The defendant was 21. The sexual activity was consensual. The defendant knew that the complainant was under 16 but thought the age of consent was younger than the complainant’s age.

[10] At p.8 of the trial court’s reasons, the court thought that s. 150.1 of the Code did not address risk of physical or social harm with a possible exception that it allows for legal consent to sexual activity between young people. On the same page, the decision found that the defendant did not have criminal intent to commit the offences. The age of the complainant was the only factor that made the actions of the defendant criminal.

[11] On p.9 of the reasons, the court held that the exploitation contemplated by s. 150.1 of the Code took away the defendant’s ability to defend himself by showing a lack of criminal intent. The trial judge noted that exploitation was integral to the harm contemplated by the section.

[12] The trial court concluded that there was a s. 7 Charter breach that could not be considered a reasonable limit saved by s. 1 of the Charter. The court found that the facts of this case amounted to a rare situation and that the appropriate remedy was a stay pursuant to s. 24(1) of the Charter.

[13] I conclude that the trial court was in error in finding that s. 150.1 of the Code infringed the Charter. Parliament has authority to legislate criminal law. Should Parliament create criminal offences that are strict liability offences, courts may find that the legislation contravenes the Charter of Rights and Freedoms. For example, in the past, s. 146 of the Code legislated statutory rape whereby there was no defence once the act of sexual intercourse between an adult male and a young female person occurred. Such legislation was in contravention of the Charter.

[14] With s. 150.1 of the Code, there is no absolute liability or arbitrary liability. Rather, s. 150.1 of the Code allows for error by an accused person. If an accused takes all reasonable steps to ascertain the age of the complainant, then consent from the complainant to sexual intercourse can be relied upon by the accused.

[15] Sexual assault is a general intent offence. s. 150.1 of the Code does not affect general intent. The intent for sexual assault has been held to be general intent by the Supreme Court of Canada in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333 at paragraph 7.

[16] I conclude that the trial court here analyzed the legal issues incorrectly by in effect interpreting the conduct in this case to be of such a nature as to make sexual assault a specific intent offence. The trial court sympathized with the defendant who knew the age of the complainant and by an error in law thought his acts were legal. The trial court did not use the term specific intent but did state that there was no mens rea.

[17] The reasons for the decision in effect found that the circumstances were a hardship on the accused man to the extent that a constitutional exemption should apply to his conduct thereby leading to a stay of the proceedings. To do so would result in trial courts addressing such situations on a case by case basis thereby taking away the predictability of the law. This was considered by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paragraph 67. In the same decision at paragraph 70 the Court referenced a constitutional exemption under s. 24(1) of the Charter as a personal remedy while at the same time leaving the law on the books. Such a development would create uncertainty about the law for citizens.

[18] Basically, if a law contravenes the Charter, it should be struck down by virtue of s. 52 of the Charter. The consideration of a constitutional exemption is to be used as an interim remedy companioned with a suspended declaration of invalidity under s. 52(1) of the Charter. At paragraph 46 in the Ferguson decision (supra), the Supreme Court of Canada referred to Corbiera v. Canada, 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203 for this reference to a constitutional exemption.

[19] The Ferguson decision (supra) cautioned about intruding into the role of Parliament and did not permit a constitutional exemption under s. 24(1) of the Charter when the Court did not declare a law to be invalid. If a provision of law were subject to a constitutional defect, it could not be struck down by s. 24(1) of the Charter, nor could it be handled on a case by case basis because to do so would effectively trump s. 52(1) of the Charter. S. 24(1) of the Charter is a remedy for unconstitutional government acts. In those situations, s. 52(1) would not be applicable.

[20] With respect to A.B., there is no improper action by the police or government. Therefore, s. 24(1) is not applicable.

[21] The bottom line is that the trial court decision re-wrote the law for A.B.’s fact situation. One might sympathize with A.B.; however, s. 150.1 of the Code is valid and does not contravene s. 7 of the Charter. S. 150.1 does not create arbitrary or absolute liability for A.B. for engaging in sexual intercourse with the complainant who was 15 years of age.

Conclusion

[22] The stay of proceedings is set aside.

[23] The matter is referred back to the trial court for the purpose of completing the sentencing process of A.B.

Justice B. Glass

Released: October 3, 2012