R. v. Cembella

2002BCSC1129 Citation: HER MAJESTY THE QUEEN v. CEMBELLA Date: 20020726 2002 BCSC 1129 Docket: 22331 Registry: Prince Rupert IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN against ALLAN DOUGLAS CEMBELLA REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HALFYARD Counsel for the Crown G. Rivard Counsel for the Defence D. O'Byrne Date and Place of Trial: February 27 and 28, 2002 Prince Rupert, BC Written Submissions filed by: July 5, 2002 [1] The accused, Allan Douglas Cembella, is charged with the following offence: Allan Douglas Cembella, in or about September 1977, ator near Kitkatla, in the Province of British Columbia, did have sexual intercourse with V.H.S., a female person, not his wife, who was of previously chaste character, and who was fourteen years of age or more and under the age of sixteen years, contrary to Section 146(2) of the Criminal Code. [2] The Information was sworn on March 28, 2000, and the preliminary hearing was held on October 3, 2000. The Indictment was filed on January 8, 2001, and a trial date of February 25, 2002 was set. Well before the trial date, defence counsel informed Crown counsel that he would be making an application for a stay of proceedings on the ground that it would be an abuse of process to prosecute the accused for this offence. Accordingly, no witnesses were subpoenaed, and the application was commenced on February 27, 2002, continuing on February 28, with oral argument by defence counsel. [3] There were delays occasioned by the need to give notice to the federal and provincial Attorneys-General, and by the lack of court time to fit with the availability of counsel. Eventually, at counsel's suggestion, I directed that the hearing be completed by submissions in writing, and by July 5, 2002, all written submissions had been filed. [4] As the argument was developed, it became apparent that the defence was asserting that s. 146(2) is in conflict with the Canadian Bill of Rights. [5] The defence submits that s. 146(2) violates the rights of the accused that are guaranteed by ss 1(a), 1(b) and 2(f) of the Canadian Bill of Rights ("the Bill of Rights"). The rights in question are the right to liberty, the right to equality, and the right to be presumed innocent. The second branch of the argument is that there is no federal law which states that s. 146(2) shall operate notwithstanding the Bill of Rights, and it therefore should be declared inoperative, and the Indictment quashed. In the alternative, the defence argues that it would be an abuse of process to permit the further prosecution of the accused, on this charge, and that a stay of proceedings is justified. [6] Crown counsel submits that s. 146(2) does not violate the Bill of Rights in any of the ways alleged. Further, the Crown says there would be no abuse of process if the accused is tried for this offence. [7] The Bill of Rights is relied on, because the offence is alleged to have been committed in September of 1977, about four and one‑half years before the Canadian Charter of Rights and Freedoms ("the Charter of Rights") became law. The authorities establish that the provisions of the Charter of Rights relating to substantive law, do not apply retroactively to offences allegedly committed before it came into force. But the sections relating to procedural law are retroactive, and do apply to the trial of such offences, where the trial occurs after April 17, 1982. See R. v. Stevens (1988) 41 C.C.C. 3d 193 (S.C.C.). [8] After hearing and reading all of the arguments and authorities presented by counsel, it is my opinion that the issues requiring decision are as follows: (a) Does s. 146(2) create an absolute liability offence, and if so, does this violate the accused's right to liberty under s. 1(a) of the Bill of Rights? (b) Further, or in the alternative, does s. 146(2) discriminate against male persons by reason of their sex, and if so, does this contravene the accused's right to equality under s. 1(b) of the Bill of Rights? (c) Does the reverse onus clause that was contained in s. 139(3) of the Criminal Code, violate the accused's right to be presumed innocent until proven guilty according to law, under s. 2(f) of the Bill of Rights? (d) If the answer to (a), (b) and (c) is no, then would it be an abuse of process for the accused to be tried for an offence under s. 146(2) of the Criminal Code, and if so, should a stay of proceedings be granted as a remedy? [9] I set out the relevant legislation: Criminal Code: "146(2) Every male person who has sexual intercourse with a female person who (a) is not his wife, (b) is of previously chaste character, and (c) is fourteen years of age or more and is under the age of sixteen years, whether or not he believes that she is sixteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for five years. 146(3) Where an accused is charged with an offence under subsection (2), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is more to blame than the female person. 1953-54, c. 51, s. 138; 1959, c. 41, s. 9; 1972, c. 13, s. 70. 147 No male person shall be deemed to commit an offence under section 144, 145, 146 or 150 while he is under the age of fourteen years. 1953‑54, c. 51, s. 139. 139(3) In proceedings for an offence under subsection 146(2) or section 151, 152 or paragraph 153(b), the burden of proving that the female person in respect of whom the offence is alleged to have been committed was not of previously chaste character is upon the accused. 139(4) In proceedings for an offence under subsection 146(2) or under section 151 or paragraph 153(b), evidence that the accused had, prior to the time of the alleged offence, sexual intercourse with the female person in respect of whom the offence is alleged to have been committed shall be deemed not to be evidence that she was not of previously chaste character. 1953‑54, c. 51, s. 131 Canadian Bill of Rights Recognition and Declaration of Rights and Freedoms 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely: (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; ... Construction of Law 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; ..." [10] I will assume that the accused bears the burden of establishing the affirmative on all issues, on the balance of probabilities. Does s. 146(2) create an absolute liability offence? [11] An offence of "absolute liability" is one which does not require proof of moral fault or guilty knowledge or intent. Not only is it unnecessary for the Crown to prove that the accused intended to commit the actus reus of the offence, but it is not even necessary to prove that the accused had knowledge of all of the facts comprising the actus reus. It is a principle of fundamental justice, protected by s. 7 of the Charter of Rights, that an offence of absolute liability cannot be punishable by imprisonment: Reference re s. 94(2) of the Motor Vehicle Act (1985) 23 C.C.C. 3d 289 (S.C.C.) at 293 and 310-311. But would the combination of absolute liability and imprisonment violate the right to liberty, as protected by s. 1(a) of the Bill of Rights? The first issue is whether s. 146(2) creates an offence of absolute liability. I begin with an analysis of the essential elements of the offence. [12] In my opinion, the essential elements of the offence created by s. 146(2) that must be proved beyond a reasonable doubt by the Crown, are as follows: (a) The accused is a male person. (b) The accused was 14 years of age or more at the time of the alleged offence (see s. 147). (c) The accused had sexual intercourse with a female person. (d) That female person ("the complainant") was then 14 years of age or more, but was under the age of 16 years. (e) The complainant was not then the wife of the accused. (f) At the time of the act of sexual intercourse, the complainant was "of previously chaste character." [13] On reading s. 146(2), and the authorities that have considered it, it is my opinion that absence of consent on the part of the complainant is not a necessary element of the offence. Also, the section expressly removes any requirement to prove that the accused knew that the complainant was under 16 years of age. [14] In my opinion, the content of former s. 139(3) dictates that the Crown does not have to prove that the accused knew that the complainant was "of previously chaste character." The onus is on the accused, to prove that she was not. [15] Section 146(3) says that "... the court may find the accused not guilty if it is of opinion that the evidence does not show that ... the accused is more to blame than the female person." It seems to me that this provision creates a statutory defence, rather than an essential element of the offence. In other words, in my opinion, it is not necessary for the Crown to prove that the accused was "more to blame" than was the complainant. It also appears to me that, even if the accused proved that the complainant was more to blame, or at least equally to blame, the use of the word "may" (rather than "shall" or "must") makes the defence a restricted one. While it is open to the accused to prove that the complainant was just as much (or more) to blame than he was, the Crown need not prove that the accused was more to blame than the complainant. [16] In my view, the situation encompassed in s. 146(3) is similar to the statutory "defence" created by s. 258(1)(a) of the Criminal Code, on a charge of care or control of a motor vehicle while impaired or "over .08". On a trial for that offence, if the Crown proves that the accused was in the driver's seat, a presumption of care or control arises by operation of law. The Crown does not have to prove that the accused intended to set the vehicle in motion. However, the accused may attempt to prove that he did not have such intent. If he is successful in establishing that fact on a balance of probabilities, the presumption of care or control that would otherwise prevail, is rebutted. But even in that event, the accused will not be automatically acquitted. The whole of the evidence must still be weighed to determine whether care and control has been proved, without reliance on the presumption. But if the accused fails to rebut the presumption, then care or control (i.e., guilt) is conclusively presumed. See R. v. Ford (1982) 65 C.C.C. 2d 392 (S.C.C.). [17] Reasoning by analogy, s. 139(3) created a presumption that the complainant was "of previously chaste character", and if the accused failed to prove that the complainant was not of previously chaste character, then that essential element of the offence would be presumed. Only if the accused could then establish that the complainant was at least equally to blame for the sexual activity, would he have a chance for acquittal. In that event, the court is given the discretion to find the accused not guilty, but is not required to acquit him. [18] It is my opinion that s. 146(2) creates an offence of absolute liability for the reasons which I have discussed, namely: (a) Proof that the complainant consented to the sexual intercourse is not a defence, even though the complainant must be 14 years of age or older, which deprives the accused of the defence implicit in s. 140. (b) Section 146(2) deprives the accused of the potential defence that he honestly but mistakenly believed the complainant was 16 years of age or older. (c) Section 146(2) (when combined with Section 139(3)) deprives the accused of the potential defence that he honestly but mistakenly believed that the complainant was not of previously chaste character. [19] In the result, the accused is exposed to conviction for an offence punishable by up to 5 years imprisonment, when "... no defence can be made, and which may be committed unknowingly and with no wrongful intent": per McIntyre, J. in Reference re s. 94(2) of Motor Vehicle Act, supra, at page 293. Has there been a violation of the accused's right to liberty? [20] The next question is whether the creation of an offence of absolute liability which is punishable by imprisonment, constitutes a violation of an accused person's right to liberty under s. 1(a) of the Bill of Rights. I am persuaded that, if the present offence had been alleged to have been committed after the Charter of Rights came into force on April 17, 1982, the combination of an absolute liability offence and imprisonment would constitute a violation of the accused's right to liberty under s. 7 of the Charter of Rights. See Reference re s. 94(2) of the Motor Vehicle Act, supra, R. v. Butler [1994] O.J. No. 4324 (Ont. H.C.), R. v. Chabot [1999] O.J. No. 836 (Ont. H.C.) and R. v. Randell (1989) Nfld & PEI Reports 195 (Nfld S.C.). [21] However, the majority judgment in R. v. Stevens, supra, and the comments of Dickson, C.J.C. for the court in R. v. Whyte (1988) 42 C.C.C. 3d 97 (S.C.C.) at 105‑106, tend to favour the position taken by the Crown, that prosecuting an accused person for an absolute liability offence punishable by imprisonment, would not constitute a violation of his right to liberty under the Bill of Rights. [22] Even so, Mr. O'Byrne argued on behalf of the accused, that the reasoning employed in the post‑Charter cases should be applied to offences allegedly committed before the Charter of Rights became law. His argument is based on the judgment of the British Columbia Court of Appeal in R. v. Stymiest (No. 2) (1993) 81 C.C.C. 3d 141. In that case, the court considered the issue of whether the previous s. 156 of the Criminal Code violated the equality provisions of the Bill of Rights. That section of the Code read: "156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years." [23] The trial judge had declared s. 156 inoperative as being contrary to s. 1(b) of the Bill of Rights, and as having no valid federal objective. Speaking for the court, Mr. Justice Legg stated the test that had to be applied (page 146) as follows: "... whether s. 156 was in pursuit of a valid federal legislative objective which provided a reasonable justification for the particular inequality of which the respondent complains, and whether that inequality was clearly arbitrary or capricious." [24] At page 147, Legg, J.A. said this: "In my view, the federal objective of the section was to protect any male from an indecent assault by another male, whether heterosexual or homosexual and if the victim of the indecent assault was under 14 years of age, it was no defence that the victim had consented to the indecent assault. In my opinion, that was a perfectly valid federal objective." [25] And at page 148, Legg, J.A. made this statement: "In my opinion, it is clear from the authorities ... that in interpreting the Bill of Rights, the Supreme Court of Canada consistently respected the supremacy of Parliament except when there were "compelling reasons" to do otherwise." [26] And returning to the federal objective, Mr. Justice Legg stated (also at page 148): "This legislative objective provided a reasonable justification for the inequality complained of, in the sense that it was not clearly arbitrary or capricious but had a legitimate basis in the policy behind the legislative objective." [27] After noting (at page 149) that the Supreme Court of Canada had indicated in several decisions "... that it was appropriate for the court to re-assess the meaning of words in the Charter borrowed from the Bill of Rights", Legg, J.A. made this significant comment: "In my opinion, however, the disinclination of the court in Turpin to import reasoning from decisions under the Bill of Rights does not mean that the reasoning in the cases decided under s. 15 of the Charter may not be imported into a consideration of whether there has been discrimination under the Bill of Rights. Indeed, I consider that it is desirable to apply the reasoning in such cases, where appropriate, in order to assist in interpreting the Bill of Rights in the context of current jurisprudence. To do otherwise would produce an anachronistic approach to the law." [28] After reviewing post‑Charter decisions, Mr. Justice Legg concluded that s. 156 was analogous to s. 146(1), and did not infringe the accused's right to equality under s. 1(b) of the Bill of Rights. [29] In my opinion, what Mr. Justice Legg said about using post‑Charter jurisprudence to assist in deciding whether a law infringes on equality rights under s. 1(b) of the Bill of Rights, applies equally to the other rights protected by the Bill of Rights. I will therefore consider some of the relevant cases decided under the Charter of Rights. [30] In R. v. Stevens, supra, the accused was charged with an offence under s. 146(1), before the Charter was in force. At the time of his trial, the Charter had become law, and the accused argued that the offence section expressly deprived the accused of the defence of honest but mistaken belief as to the age of the complainant, and therefore violated s. 7 of the Charter of Rights. The majority dismissed his appeal from conviction, on the ground that the Charter of Rights could not be applied retrospectively to change the substantive law of offences committed before it became law. Mr. Justice LeDain, for the majority, characterized the words complained of ("whether or not he believes that she is 14 years of age or more") as merely defining the requisite mens rea, rather than denying a substantive defence. Thus the majority did not conclude that s. 146(1) created an absolute liability offence, nor say that creation of an absolute liability offence punishable by imprisonment, would not violate s. 1(a) of the Bill of Rights. [31] However, in R. v. Nguyen (1991) 59 C.C.C. 3d 161, the Supreme Court of Canada held that s. 146(1) did deprive the accused of the "defence" that he honestly believed that the complainant was 14 or older, and created an offence of absolute liability, which violated s. 7 of the Charter of Rights. The court found that the objective of protecting female children under 14 from the physical and emotional trauma that may result from premature sexual intercourse and pregnancy, addressed a pressing and substantial concern. But the court also held that s. 146(1) was not justified under s. 1 of the Charter of Rights, because it did not impair the s. 7 right as little as possible. The court further held that when the words removing the defence of mistake as to age were excised, s. 146(1) did pass the Oakes test. [32] I am mindful that Madam Justice Wilson, speaking for the minority in R. v. Stevens, made this statement (at page 203): "In the pre­‑Charter era there was no constitutional impediment to denying the accused a mistake of fact defence." That statement may imply that Parliament had the power to create offences of absolute liability punishable by imprisonment, before April 17, 1982. But I do not take it to mean that the Bill of Rights did not limit this power, to the extent that it might be invoked. [33] I rely on the judgment in Reference re s. 94(2) of the Motor Vehicle Act, supra (per Lamer, J. at 293 and 310­‑311) as establishing that the principles of fundamental justice have always included the principle that an accused person must not be imprisoned for an absolute liability offence. This appears to be an aspect of the right to liberty, and in my view, it is encompassed by s. 1(a) of the Bill of Rights. [34] In my judgment, the phrase "except by due process of law" in s. 1(a) should not be construed so broadly that it permits the violation of this traditional fundamental principle of justice, without an express "notwithstanding" provision. In R. v. Drybones [1970] 3 C.C.C. 355 (S.C.C.), Mr. Justice Ritchie stated for the majority (at page 363): .. s. 2 is intended to mean and does mean that if a law of Canada cannot be 'sensibly construed and applied' so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights." [35] In my opinion, the words "whether or not he believes that she is sixteen years of age or more" in s. 146(2), cannot be sensibly construed and applied so that it does not remove the mistake of fact defence. The effect of removing that defence is to create an absolute liability offence, which in turn violates the accused's right to liberty in s. 1(a). There is no federal law that declares that s. 146(2) "shall operate notwithstanding the Canadian Bill of Rights." The result must be that s. 146(2) should be declared inoperative, and I so order. Does s. 146(2) discriminate against male persons by reason of their sex? [36] There is no offence corresponding to s. 146(2), that can only be committed by female persons against young male persons. With respect to whether s. 146(2) infringes the right to "equality before the law" under s. 1(b) of the Bill of Rights, I accede to the argument of Mr. Rivard for the Crown. In my opinion, the reasoning of the majority in R. v. Nguyen, supra, and of the Court of Appeal in R. v. Stymiest, supra, is applicable to this case. In my view, applying that reasoning, I find that there has been no infringement of the equality rights protected by s. 1(b) of the Bill of Rights. Does the reverse onus clause in s. 139(3) of the Criminal Code, violate the accused's right to be presumed innocent? [37] With respect to the reverse onus clause created by s. 139(3), it is my opinion that it requires the accused to disprove an essential element of the offence, which is otherwise presumed to exist. Since the accused would have to prove the contrary, on the balance of probabilities, it would not suffice to merely create reasonable doubt. Accordingly, the accused could be convicted, notwithstanding the existence of a reasonable doubt as to his guilt. I think there is no question that this would constitute a violation of s. 11(d) of the Charter of Rights, on the authority of R. v. Oakes (1986) 24 C.C.C. 3d 321 (S.C.C.). But does the enactment of such a reverse onus clause "deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty accordingly to law ...", contrary to s. 2(f) of the Bill of Rights? [38] In R. v. Appleby (1971)3 C.C.C. 2d 354, the Supreme Court of Canada held that the presumption of care or control (now embodied in s. 258(1)(a)) was not inconsistent with s. 2(f) of the Bill of Rights. As previously mentioned, that presumption places the onus on the accused to prove on a balance of probabilities that he or she did not enter the motor vehicle with the intention of setting it in motion. Speaking for the majority, Mr. Justice Ritchie said, in effect, that Parliament could lawfully restrict the right to be presumed innocent, in these words (at pages 363‑364): "... the words 'presumed innocent until proved guilty according to law' as they appear in s. 2(f) of the Canadian Bill of Rights, must be taken to envisage a law which recognizes the existence of statutory exceptions reversing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Crown in relation to such ingredients." [39] In R. v. Whyte, supra, the Supreme Court held that the presumption of care or control does breach the presumption of innocence guaranteed by s. 11(d) of the Charter of Rights. In explaining the contrary conclusion reached in Appleby, Dickson, C.J.C. stated that there was a fundamental difference between the Bill of Rights (a statute) and the Charter of Rights (a constitution), and that the Charter immunizes certain basic rights and freedoms from legislative encroachments. At page 106, he stated: "... it is the nature of the two documents which gives the presumption of innocence different effects under the Canadian Bill of Rights and the Charter." [40] In Whyte, the court went on to hold that the infringement of the presumption of innocence was saved by operation of s. 1 of the Charter of Rights, as being a reasonable limit prescribed by law which could be demonstrably justified in a free and democratic society. [41] From the foregoing discussion, I reluctantly accede to the Crown's submission that the accused's right to be presumed innocent under s. 2(f) of the Bill of Rights has not been violated by the reverse onus clause in s. 139(3), because, before April 17, 1982, Parliament had the lawful authority to legislate so as to encroach on that right. If it were necessary for me to decide whether s. 139(3) would be saved by s. 1 of the Charter, I would find that there is no valid federal objective of sufficient importance to justify the infringement of the right to be presumed innocent that results from the operation of s. 139(3). One of the major flaws in that presumption, in my view, is that there is no rational connection between the facts proved (that the accused had sexual intercourse with a female person aged 14 or 15 who was not his wife) and the fact to be presumed (that the female person was "of previously chaste character"). Would it be an abuse of process for the accused to be tried for an offence under s. 146(2)? [42] For the purpose of this analysis, I will presume that my decision to declare s. 146(2) inoperative, is wrong. [43] If this case goes to trial, then I infer from the facts stated by counsel that the evidence will show that the complainant was 15 years of age in September of 1977, the accused was her science teacher at school, and that there was sexual intercourse between the two parties on four occasions in a one month period. It also appears that the complainant consented to the sexual intercourse, or at least that the Crown would be unable to prove that she did not consent. I was not told whether any issue would be raised as to the accused's knowledge of the complainant's age, or whether he would challenge the allegation that she was "of previously chaste character." It does appear that there could be a legitimate dispute as to whether the accused was more to blame than was the complainant. [44] The test for what constitutes an abuse of process at common law was stated in R. v. Jewitt (1985) 21 C.C.C. 3d 7 (S.C.C.), and has been reaffirmed by the Supreme Court in many cases, as follows: "... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of the court's process through oppressive and vexatious proceedings." [45] The law has developed to the point where it is now clear that an abuse of process will also constitute a violation of the principles of fundamental justice insofar as it deprives an accused person of his or her liberty under s. 7 of the Charter, and that a stay of proceedings or lesser remedy may be applied for under the Charter: R. v. O'Connor (1995) 103 C.C.C. 3d 1 (S.C.C.) at paragraph 63. At paragraph 75, the court stated that a stay of proceedings will only be granted when two conditions have been met: "The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and No other remedy is reasonably capable of removing that prejudice." The prejudice contemplated may be either prejudice to the accused or prejudice to the integrity of the judicial system. [46] Finally, the Supreme Court has reaffirmed at paragraph 69 that: "... where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings." [47] All of these principles have recently been reaffirmed, with some clarification, in R. v. Regan (2002) 161 C.C.C. 3d 97 (S.C.C.) at paragraphs 49 to 57. For the majority, Lebel, J. made it clear that conduct which does not affect trial fairness may nevertheless constitute an abuse of process, if it causes prejudice to the integrity of the judicial process. At paragraphs 55 and 56, Lebel, J. explained that, if the abuse is of the latter kind, it must be likely that the past misconduct (i.e. the abuse) "will continue to plague the judicial process", before the ultimate remedy of a stay will be ordered. Finally, if there is uncertainty in the sense that a stay of proceedings is not obviously and clearly justified, Lebel, J. states that the court must engage in a balancing or weighing of public and individual interests. It is pointed out that "a compelling societal interest in having a full hearing could tip the scales in favour of proceeding" (paragraph 57). [48] With these rules of law in mind, I return to the issue of whether an abuse of process has occurred, and will continue to occur, if the accused is tried on the present charge. I note firstly that s. 146(2) was repealed on January 1, 1988, and that no similar offence has been enacted to replace it. Second, there are two decisions in Ontario and one in Newfoundland, all at the Supreme Court level, which hold that s. 146(2) creates an absolute liability offence punishable by imprisonment, in violation of s. 7 of the Charter, that it is not saved by s. 1, and that it is therefore, in its entirety, of no force or effect. Third, it seems to me that s. 146(2) was an attempt to enforce rules or ideals of sexual morality that may have conformed with community standards at the turn of the century, but which appear questionable in recent decades. Fourth, the present charge was laid 23 years after the alleged offence, and 12 years after Parliament repealed s. 146(2). Finally, on the authority of R. v. Stevens, supra, it appears that no important Charter remedies would be available to the accused, at his trial. [49] If the date of the alleged offence in this case had been after April 17, 1982, the accused would have had the full protection afforded by the Charter of Rights, at his trial. In my opinion, a declaration would have been granted declaring s. 146(2) of no force or effect in its entirety, under s. 52(1). If I am in error on this point, other lesser remedies could be applied for, under the Charter of Rights, as follows: (a) The words "whether or not he believes that she is 14 years of age or more" would be excised from s. 146(2). That would enable the accused to raise the defence that he honestly believed that the complainant was 16 years of age or more. (See R. v. Nguyen, supra). (b) The reverse onus clause in s. 139(3) (assuming that it had not been effectively repealed on January 4, 1983 as argued by defence counsel) might be declared of no force or effect, which would place the burden of proof on the Crown, and enable the accused to raise the defence that he honestly but mistakenly believed that the complainant was not of previously chaste character. (c) An application could be made to the trial judge, requesting that s. 146(2) be read as requiring the Crown to prove the absence of consent on the part of the complainant. Some support for such an application might be found in R. v. C.M. (1995) 98 C.C.C. 3d 481 (Ont. C.A.). In that case, the accused was charged under s. 159 (committing anal intercourse with a person under 18 years of age). The complainant was aged 14 to 18 years, at the time of the alleged offence. The trial judge declared that consent would be a defence to the charge, and acquitted the accused. An appeal by the Crown was dismissed, but on the sole ground that there had been a violation of equality rights under s. 15(1) of the Charter, which was not saved by s. 1. The Court of Appeal did not decide whether the trial judge was right in declaring consent to be a defence. (In my view, such a remedy would be highly unlikely in this case, even if the offence date was after April 17, 1982.) [50] In my opinion, even if one or more of the lesser remedies mentioned above would be available to the accused at trial, they would not address the further potential prejudice that could be caused by the operation of s. 146(3) and (assuming it exists) s. 139(4). Section 146(3), as mentioned, in my view creates a quasi‑defence whereby it is open to the accused to prove that the complainant was equally to blame (or more to blame) than he was, in causing the sexual intercourse to occur. If the accused is successful in that regard, the trier of fact "may" find him not guilty, but an acquittal is not required by law, even in that circumstance. Another unusual aspect of this "discretionary defence" appears to be that it is based on the premise that the trier of fact has already found that the complainant was of previously chaste character (or at least, that the accused has failed to prove that she was not). [51] Continuing on with this analysis, the situation could exist under s. 146(3), where the trier of fact was not satisfied that the complainant was equally (or more) to blame than the accused, in that the accused was 51% to blame and the complainant was 49% to blame. If so, the fact that the complainant was almost as much to blame as the accused, would have to be ignored by the trier of fact as being irrelevant. Nothing less than 50% blame on the part of the complainant could be taken into consideration. It appears that the accused's belief on this issue would be irrelevant. And no criteria are given, for assessing blame. [52] Section 139(4) directs the trier of fact to ignore any knowledge or belief that the accused may have, about whether the complainant was "of previously chaste character", even if his knowledge or belief is based on previous acts of sexual intercourse with the complainant. This obviously deprives the accused of a defence of honest but mistaken belief that the complainant was not of previously chaste character. It is unclear to me whether the trier of fact would be able to consider the accused's knowledge or belief concerning the previous character of the complainant, when deciding the issue of whether the accused was more to blame than the complainant. But if the trier of fact is required to apportion blame between the accused and the complainant, without consideration of the accused's knowledge or belief as to the complainant's previous character, I do not see how the judge or jury could fairly assess the blame which should be attributed to the accused. But moreover, as I have said, even if the accused was found to be successful on this issue, the question of guilt or innocence would still be left to the discretion of the trier of fact. I think it is arguable that the effect of s. 146(3) and s. 139(4) could violate the accused's right to a fair trial, and his right to be presumed innocent. [53] In my view, the end result would be that the accused's "constitutional rights" will be seriously violated if he is put on trial, but none of the constitutional remedies I have discussed, will be available to him. [54] In these circumstances, it is my opinion that it was an abuse of process to lay the present charge, and the abuse will be continued and aggravated if he is tried, in that the prosecution of the accused under s. 146(2) undermines the integrity of the judicial process. Our society does have an important interest in prosecuting serious alleged crimes to a final determination. But what public interest was served by charging and prosecuting the accused, for having consensual sexual intercourse with a 15 year old girl, where the issue of guilt will be decided on the basis of whether the complainant was "of previously chaste character", and whether more "blame" should be attributed to the accused? [55] It is much different than the situation where a teacher commits a sexual assault against his young female student, particularly where a breach of trust may be involved. In those kinds of cases, I think the societal interest in prosecution would have great importance, and carry significant weight. But in the present case, where the complainant was 15 and the sexual activity appears to have been consensual, the objective upheld as being valid with respect to s. 146(1) offences against girls under 14 does not apply, in my view. In this regard, I am impressed by the reasoning of Mr. Justice Grossi in R. v. Butler, supra. He held that the objective underlying the creation of the offence in s. 146(2) was not "pressing and substantial", unlike that relating to s. 146(1), and therefore lacked the importance to override the right to liberty protected by s. 7 of the Charter. Grossi, J. was of the opinion that, by making the previously chaste character of the complainant an element of the offence, Parliament had created "... a sub-class of young females thought worthy of protection and another against whom sexual intercourse would not constitute a criminal offence." I agree with that conclusion. I would add that the class of young females protected by s. 146(2) is further diminished by the provision in s. 146(3), which could exclude even complainants of previously chaste character, who were as much or more to blame for the sexual activity, as was the accused. It seems to me that the public interest in the integrity of the judicial process weighs heavily against prosecuting the accused for an alleged offence which would be unconstitutional under the Charter of Rights, had it occurred 5 years later than it did. [56] In the circumstances that I have outlined, it is my opinion that the only remedy that could prevent the continuation or aggravation of the abuse that I have found, is a stay of proceedings. Accordingly, on the ground of abuse of process, I would direct a stay of proceedings on the charge against the accused. [57] I summarize my conclusions as follows: (a) Section 146(2) of the Criminal Code creates an absolute liability offence which is punishable by imprisonment, and thereby violates the accused's right to liberty under s. 1(a) of the Canadian Bill of Rights. Since there is no "notwithstanding" clause, s. 146(2) is inoperative. (b) Section 146(2) does not discriminate against male persons by reason of sex, and thus does not infringe the accused's right to equality before the law under s. 1(b) of the Bill of Rights. (c) Section 139(3) of the Criminal Code (assuming that it still exists) creates a reverse onus clause which requires the accused to disprove an essential element of the offence, but does not violate the accused's right to be presumed innocent, under s. 2(f) of the Bill of Rights. (d) It would be an abuse of process and contrary to s. 7 of the Charter of Rights, for the Crown to try the accused on the present charge under s. 146(2) of the Criminal Code, and a stay of proceedings should be granted as the appropriate remedy. [58] The application of the accused is therefore allowed on two of the grounds relied on, and in the result, the charge will be dismissed. "D.A. Halfyard, J." The Honourable Mr. Justice D.A. Halfyard