R. v. Stevens
Encyclopedia
R. v. Stevens, [1988] 1 S.C.R. 1153, was a decision of the Supreme Court of Canada rendered on June 30, 1988, concerning the retrospective application of the Canadian Charter of Rights and Freedoms
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provision defining the offence specified that the accused is guilty "whether or not he believes that she is fourteen years of age or more". Counsel for the accused argued that this part of the offence contravened section 7
of the Charter, by denying a mens rea
aspect to an essential element of the offence. In essence, the argument parallels that made successfully in Re B.C. Motor Vehicle Act
(1985).
argued that since the Charter had entered into effect at the time of Stevens's trial, he was entitled to its benefit. She distinguished the James case, which held that a search or seizure that took place prior to the Charter coming into force could not constitute a violation of section 8
of the Charter. Wilson wrote that in considering section 7 of the Charter, one must ask whether, at the time of the projected deprivation of the accused's right to liberty, that deprivation would be in accordance with the principles of fundamental justice
or not (paragraph 20). She reasoned that since the Charter was in full force and effect at the time of the accused's trial, no issue of retrospectivity was raised. She went on to find that the Criminal Code provision contravened section 7 of the Charter by creating an absolute liability offence with the possibility of imprisonment. Wilson further found that the contravention was not saved by section 1
of the Charter. On this issue, Wilson gave extensive consideration to the majority decision of the British Columbia Court of Appeal
in R. v. Ferguson, [1987] 6 W.W.R. 481. That decision was written by Justice Beverley McLachlin
, who would later join the Supreme Court of Canada as Wilson's colleague. McLachlin had found that the denial of the mistake-of-age defence in the Criminal Code provision was justified under section 1 because it created a strong deterrent against having sexual intercourse with girls, even if they appear to have attained the statutory age. Wilson disagreed with this analysis. She argued that it ascribed an unrealistically high degree of legal sophistication to the average accused (paragraph 48). She further held that a mechanism was available which would constitute a smaller impairment on the rights of the accused: a due-diligence defence
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, Wilson considered the same provision, this time writing for the majority, and found it unconstitutional as a violation of section 7, not saved by section 1. Retrospectivity was not an issue in that case because the alleged offences occurred after the Charter entered into effect.
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...
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Background
Stevens was alleged to have committed an offence a few months before April 17, 1982, when the Charter came into effect. The offence was sexual intercourse by a male person with a female person under the age of fourteen years. 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"...
provision defining the offence specified that the accused is guilty "whether or not he believes that she is fourteen years of age or more". Counsel for the accused argued that this part of the offence contravened 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 Charter, by denying a mens rea
Mens 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...
aspect to an essential element of the offence. In essence, the argument parallels that made successfully in Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
(1985).
Decision
In a 5:3 decision, the Court found that the accused could not rely on the Charter, in challenging the Criminal Code provision under which he was charged, because he committed the offence prior to the Charter entering into force. The majority relied on R. v. James, [1988] 1 S.C.R. 669.Dissent
Writing for the minority, in dissent, Justice Bertha WilsonBertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
argued that since the Charter had entered into effect at the time of Stevens's trial, he was entitled to its benefit. She distinguished the James case, which held that a search or seizure that took place prior to the Charter coming into force could not constitute a violation of section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
of the Charter. Wilson wrote that in considering section 7 of the Charter, one must ask whether, at the time of the projected deprivation of the accused's right to liberty, that deprivation would be in accordance with the principles of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
or not (paragraph 20). She reasoned that since the Charter was in full force and effect at the time of the accused's trial, no issue of retrospectivity was raised. She went on to find that the Criminal Code provision contravened section 7 of the Charter by creating an absolute liability offence with the possibility of imprisonment. Wilson further found that the contravention was not saved by section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter. On this issue, Wilson gave extensive consideration to the majority decision of the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
in R. v. Ferguson, [1987] 6 W.W.R. 481. That decision was written by Justice Beverley McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, who would later join the Supreme Court of Canada as Wilson's colleague. McLachlin had found that the denial of the mistake-of-age defence in the Criminal Code provision was justified under section 1 because it created a strong deterrent against having sexual intercourse with girls, even if they appear to have attained the statutory age. Wilson disagreed with this analysis. She argued that it ascribed an unrealistically high degree of legal sophistication to the average accused (paragraph 48). She further held that a mechanism was available which would constitute a smaller impairment on the rights of the accused: a due-diligence defence
Due diligence
"Due diligence" is a term used for a number of concepts involving either an investigation of a business or person prior to signing a contract, or an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations...
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Aftermath
Two years later, in the case of R. v. Hess; R. v. NguyenR. v. Hess; R. v. Nguyen
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....
, Wilson considered the same provision, this time writing for the majority, and found it unconstitutional as a violation of section 7, not saved by section 1. Retrospectivity was not an issue in that case because the alleged offences occurred after the Charter entered into effect.