



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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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 appellants 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 MBs
    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 MBs 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 [MBs] 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 appellants]
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 appellants 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
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 laws
    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 complainants 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 appellants 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 persons
    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 appellants 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. Parliaments intention is not simply to prevent
    sexual exploitation of children or even potential sexual exploitation of
    children, although those are certainly two of the laws 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 Parliaments 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 Parliaments
    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
    appellants 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
    persons 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 governments 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 appellants 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 laws 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 appellants position is not comparable
    to Ms. Taylors 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 MBs
    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 appellants 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 appellants
    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
, [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
    CanLII 675 (SCC)
, [1999] 1
    S.C.R. 497;
Gosselin v. Quebec
    (Attorney General)
,
2002
    SCC 84 (CanLII)
, [2002] 4 S.C.R.
    429;
McKinney v. University of
    Guelph
,
1990
    CanLII 60 (SCC)
, [1990] 3 S.C.R.
    229;
Harrison v. University of
    British Columbia
,
1990
    CanLII 61 (SCC)
, [1990] 3 S.C.R.
    451;
Stoffman v. Vancouver General
    Hospital
,
1990
    CanLII 62 (SCC)
, [1990] 3 S.C.R.
    483; and
Douglas/Kwantlen Faculty
    Assn. v. Douglas College
,
1990
    CanLII 63 (SCC)
, [1990] 3 S.C.R.
    570). (But see
Tétreault-Gadoury v.
    Canada (Employment and Immigration Commission)
,
1991
    CanLII 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).


