R. v. Hess; R. v. Nguyen
Encyclopedia
R v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 is a leading decision of the Supreme Court of Canada
where the Court struck down part of the Criminal Code of Canada
offence of rape
as a violation of section 7
of the Canadian Charter of Rights and Freedoms
.
. The provision specifically prohibited a male from having sex with a female under the age of fourteen "whether or not he believes that she is fourteen years of age or more".
In Hess's trial, the conviction was quashed on the basis that the offence violated section 15 of the Charter. The verdict was overturned at the Court of Appeal and a new trial was ordered.
In Nguyen's trial, he was convicted, which was upheld on appeal. The court did not find a violation of section 15, but there was a violation of section 7, which was saved under section 1.
The question before the Supreme Court was whether the criminal provision violated sections 7 or 15 of the Charter.
element in establishing the offence as the accused did not need to know the girl's age. Wilson noted that a provision that convicts morally innocent individuals as a means to control a certain area of crime is inconsistent with the principles of fundamental justice. She further noted that this form of constructive culpability was not proportional and so it could not be justified through judicial discretion.
As a remedy, the Court severed
the infringing words from the text so that to secure a conviction, it must be proved that the accused knew the girl was under fourteen (or was wilfully blind
to that fact).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court struck down part of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
offence of rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
as a violation of section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Background
Victor Hess and Van Nguyen were both charged in two separate incidents with having sexual intercourse with a female under the age of fourteen contrary to section 146(1) of the Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. The provision specifically prohibited a male from having sex with a female under the age of fourteen "whether or not he believes that she is fourteen years of age or more".
In Hess's trial, the conviction was quashed on the basis that the offence violated section 15 of the Charter. The verdict was overturned at the Court of Appeal and a new trial was ordered.
In Nguyen's trial, he was convicted, which was upheld on appeal. The court did not find a violation of section 15, but there was a violation of section 7, which was saved under section 1.
The question before the Supreme Court was whether the criminal provision violated sections 7 or 15 of the Charter.
Opinion of the Court
Justice Wilson, writing for the majority, found a violation of section 7 as the provision did not require a mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
element in establishing the offence as the accused did not need to know the girl's age. Wilson noted that a provision that convicts morally innocent individuals as a means to control a certain area of crime is inconsistent with the principles of fundamental justice. She further noted that this form of constructive culpability was not proportional and so it could not be justified through judicial discretion.
As a remedy, the Court severed
Severance
-Entertainment:*Severance , the 2003 album of Australian melodic death metal band Daysend*Severance , the 2006 British horror film* "Severance", a song by Dead Can Dance from the 1988 album The Serpent's Egg...
the infringing words from the text so that to secure a conviction, it must be proved that the accused knew the girl was under fourteen (or was wilfully blind
Willful blindness
Willful blindness is a term used in law to when an individual seeks to avoid civil or criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him liable.For example, in a number of cases,...
to that fact).