''R v Hess; R v Nguyen'',

990 Year 990 ( CMXC) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Al-Mansur, ''de facto'' ruler of Al-Andalus, conquers the Castle of Montemor-o-Velho (mode ...

2 S.C.R. 906 is a decision of the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

where the Court struck down part of the Criminal Code offence of

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...

as a violation of section 7 of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...

''.

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''. 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 rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...

'' 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.at p.923 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).

References

External links

*
case summary at mapleleafweb.com
{{DEFAULTSORT:Hess and Nguyen Section Seven Charter case law Section Fifteen Charter case law Supreme Court of Canada cases Sex case law Sexuality and age 1990 in Canadian case law Rape in Canada Canadian criminal case law