Regina v. Carmen M.
[Indexed as: R. v. M. (C.)]

23 O.R. (3d) 629

[1995] O.J. No. 1432

No. C12929

Charter of Rights and Freedoms -- Equality rights -- Discrimination on basis of age -- Section 159 of Criminal Code (prohibiting anal intercourse unless both consenting individuals are at least 18 years old or married) discriminatory on basis of age contrary to s. 15(1) of Charter -- Discriminatory effect of s. 159 not justified under s. 1 of Charter -- Section 159 of no force or effect -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1) -- Criminal Code, R.S.C. 1985, c. C-46, s. 159.

The accused was charged with a number of offences, including anal intercourse contrary to s. 159 of the Criminal Code, arising out of a three-year affair with the niece of his fiancée which started when the complainant was 13 and the accused was 23. The trial judge found that the acts of anal intercourse took place when the complainant was between 14 and 18 years old, and that she had consented to them. She found that s. 159 of the Code, which prohibits anal intercourse unless both parties consent and are at least 18 years old or married, violated s. 7 of the Canadian Charter of Rights and Freedoms because it deprived an accused of the defence of consent. She therefore read this defence into s. 159, concluded that the accused was entitled to avail himself of the defence, and found him not guilty of anal intercourse. The Crown appealed.

Held, the appeal should be dismissed.

Per Abella J.A.: Anyone who is 14 or older, whether married or not, can consent to most forms of non-exploitive sexual conduct without criminal consequences, whereas no one can consent to anal intercourse unless he or she is at least 18 or married. Sexual orientation is an analogous ground of discrimination prohibited under s. 15 of the Charter. Gays and lesbians form a historically disadvantaged group, and s. 159 violates s. 15(1) of the Charter because it arbitrarily disadvantages individuals in that historically disadvantaged group -- gay men -- by denying to them until they are 18 a choice available at the age of 14 to those who are not gay, namely, their choice of sexual expression with a consenting partner to whom they are not married. Anal intercourse is a basic form of sexual expression for gay men. The prohibition of this form of sexual conduct in s. 159 accordingly has an adverse impact on them. Section 159 infringes s. 15(1) of the Charter on the grounds of sexual orientation.

The Crown advanced, as a legislative objective sufficiently pressing and substantial to justify overriding the constitutionally protected right, the objective of protecting young persons from engaging in a specific form of sexual activity, anal intercourse, for which there are increased risks of physical and psychological harm, and, in particular, the increased risk for the transmission of H.I.V. It is difficult to imagine a more intrusive way to protect an individual from harm than criminal prosecution. Far from minimally impairing the right to equality, the loss of liberty for a consensual form of sexual expression is the most restrictive means possible for achieving the objective. It is inappropriate to deal with minimizing health risks at any age by using the punitive force of the Criminal Code, but especially so for young people.

It is not enough for a government to assert an objective for limiting guaranteed rights under s. 1; there must also be an underlying evidentiary basis to support the assertion. Since there is no empirical evidence that adolescents are more at risk of H.I.V. transmission than any other group, or that criminalizing their sexual behaviour protects them from this risk, there is, accordingly, no evidentiary foundation to support the government's articulated objective.

The measures chosen in s. 159 to protect young people from risk are arbitrary and unfair, compared to the measures used to protect against the health risks for individuals who prefer other forms of sexual conduct. There is no rational connection between protecting someone from the potential harm of exercising sexual preferences and imprisoning that individual for exercising them. There is no proportionality between the articulated health objectives and the draconian criminal means chosen to achieve them. The infringement of s. 15 was not justified under s. 1 of the Charter.

Per Goodman and Catzman JJ.A.: Section 159 of the Criminal Code constitutes an infringement of s. 15 on the ground of age. On the question whether the discriminatory effect of s. 159 can be justified under s. 1 of the Charter, the portion of the reasons of Abella J.A. concluding that s. 159 cannot be so justified are agreed with.

APPEAL by the Crown from a judgment of Corbett J. (1992), 1992 CanLII 12798 (ON SC), 11 C.R.R. (2d) 363, 75 C.C.C. (3d) 556, 15 C.R. (4th) 368 (Gen. Div.), acquitting the accused on a charge of anal intercourse.

Cases referred to Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 36 C.R.R. 193, 56 D.L.R. (4th) 1, 34 B.C.L.R. (2d) 273, 91 N.R. 255, [1989] 2 W.W.R. 289, 25 C.C.E.L. 255; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 149 N.R. 1, 46 C.C.E.L. 1, 93 C.L.L.C. 17,006, 13 C.R.R. (2d) D-5; Egan v. Canada, 1993 CanLII 2947 (FCA), [1993] 3 F.C. 401, 15 C.R.R. (2d) 310, 103 D.L.R. (4th) 336, 153 N.R. 161 (C.A.); Haig v. Canada (1992), 1992 CanLII 2787 (ON CA), 9 O.R. (3d) 495, 10 C.R.R. (2d) 287, 94 D.L.R. (4th) 1, 92 C.L.L.C. 17,034 sub nom. Birch v. Canada (C.A.); Halm v. Canada (Minister of Employment & Immigration) (1995), 1995 CanLII 3573 (FC), 27 C.R.R. (2d) 23 (F.C.T.D.); McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, 2 C.R.R. (2d) 1, 76 D.L.R. (4th) 545, 45 O.A.C. 1, 118 N.R. 1, 91 C.L.L.C. 17,004, 2 O.R. (3d) 319n; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, 37 Alta. L.R. (2d) 97, 58 N.R. 81, [1985] 3 W.W.R. 481, 85 C.L.L.C. 14,023; R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, 50 C.R.R. 71, 59 C.C.C. (3d) 161, 79 C.R. (3d) 332, 73 Man. R. (2d) 1, 46 O.A.C. 13, 119 N.R. 353, [1990] 6 W.W.R. 289 sub nom. R. v. Nguyen, R. v. Boyle; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 26 D.L.R. (4th) 200, 14 O.A.C. 335, 65 N.R. 87, 53 O.R. (2d) 719n; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, 39 C.R.R. 306, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 34 O.A.C. 115, 96 N.R. 115; Schachter v. R., 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, 10 C.R.R. (2d) 1, 93 D.L.R. (4th) 1, 139 N.R. 1, 92 C.L.L.C. 14,036 sub nom. Schachter v. Canada Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 Constitution Act, 1982, s. 52 Criminal Code, R.S.C. 1985, c. C-46, s. 159 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 3] Criminal Law Amendment Act, 1885, 48 and 49 Vict., c. 69, s. 11 Authorities referred to Canada, Royal Commission on Equality in Employment (1984), p. 3 Eichler, M., "The Elusive Ideal -- Defining Equality" (1988), 5 C.H.R.Y.B. 167 Lepofsky, M.D., "The Canadian Judicial Approach to Equality Rights: Freedom Ride or Rollercoaster?" (1992), 1 N.J.C.L. 315 Sheppard, C., "Litigating the Relationship Between Equity and Equality", Ontario Law Reform Commission Study Paper (1993) Smith, L., "Judicial Interpretation of Equality Rights Under the Canadian Charter of Rights and Freedoms: Some Clear and Present Dangers" (1988), 23 U.B.C. Law Rev. 65 Smith, L., and Black, W., "The Equality Rights" in Beaudoin and Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (1989), p. 557

Jay L. Naster, for the Crown, appellant.

Bruce W. Duncan and Todd Ducharme, for respondent.

Brian Weagant and Sheena S. Scott, for intervenor, The
Canadian Foundation for Children, Youth and the Law.

David L. Corbett, for intervenors, The Canadian Aids Society
and The Coalition for Lesbian and Gay Rights in Ontario.

ABELLA J.A.: -- Anyone who is 14 or older, whether married or not, can consent to most forms of non-exploitive sexual conduct, including vaginal intercourse, without criminal consequences. On the other hand, unless they are married, no one under 18 can agree to anal intercourse without being liable to criminal prosecution. The issue in this appeal is whether this difference is constitutional.

Prior Proceedings

The Criminal Code, R.S.C. 1985, c. C-46, provision prohibiting anal intercourse unless both consenting individuals are 18 years old or married, is s. 159. It states:

159(1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.

(3) For the purposes of subsection (2),

(a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or

(ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.

The trial judge was asked to determine whether s. 159 infringed ss. 15 and 7 of the Canadian Charter of Rights and Freedoms. She concluded that s. 159 was violative of s. 7 because it deprived an accused of the defence of "consent": R. v. M. (C.) (1992), 1992 CanLII 12798 (ON SC), 75 C.C.C. (3d) 556, 15 C.R. (4th) 368 (Ont. Gen. Div.). She therefore read this defence into s. 159, pursuant to s. 52 of the Constitution Act, 1982 and to the spectrum of remedies authorized in Schachter v. R., 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1. She did not deal with s. 15 of the Charter. The Crown appealed, arguing before this court that s. 159 was contrary neither to s. 7 nor s. 15 of the Charter.

The facts of the case are fully set out in the trial judge's reasons. In summary, the respondent was arraigned on an indictment charging him with four offences resulting from a three-year sexual relationship with the niece of his fiancée. The relationship had begun when the respondent was 23 and the complainant was 13. It ended a few months after the respondent married the complainant's aunt. The sexual activities included oral, vaginal and anal intercourse.

After a two-day trial, the respondent was found guilty both of sexual assault and of sexual interference, and was sentenced to 18-month concurrent terms of imprisonment for each offence. He was found not guilty of sexual exploitation.

The trial judge found that the acts of anal intercourse took place when the complainant was between 14 and 18 years old, and that she had consented to them. Having remedied the Charter violation by reading the defence of consent into s. 159 when one of the participants is between the ages of 14 and 18, the trial judge concluded that the respondent was entitled to avail himself of this defence and accordingly found him not guilty of the offence of anal intercourse.

Analysis

(a) Section 15

Because of the unique way in which this sexual activity is addressed in the Criminal Code, I prefer to begin the inquiry into the constitutionality of s. 159 by examining whether, in form or in substance, it violates s. 15 of the Charter. The respondent and the intervenors submit that s. 159 violates s. 15 of the Charter on the grounds of age, marital status, and sexual orientation. I agree with their view that while all three grounds intersect in this case, the essence of the discrimination is sexual orientation, with age and marital status being tentacles of this form of discrimination.

The appellant concedes both that sexual orientation is an analogous ground of discrimination prohibited under s. 15 of the Charter (Haig v. Canada (1992), 1992 CanLII 2787 (ON CA), 9 O.R. (3d) 495, 10 C.R.R. (2d) 287 (C.A.)), and that the respondent has standing to challenge the constitutional invalidity of the law: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, 13 C.R.R. 64.

Section 15 of the Charter states:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Based largely on human rights jurisprudence, the equality rights guaranteed in s. 15 have been interpreted to mean that every individual is equally entitled to be free from arbitrary disadvantage flowing from group membership in the substance or administration of law: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 36 C.R.R. 193. It is not all group membership, however, that attracts the protection of s. 15. Only membership in a group historically disadvantaged by prejudice or discrimination is the focus of these equality rights; those groups, in other words, whose members have experienced arbitrary exclusions or burdens based not on their actual individual capacities, but on stereotypical characteristics ascribed to them because they are attributed to the group of which the individuals are a member.

Equality is the antithesis of discrimination. The essence of discrimination in human rights theory is the unjustified attribution of stereotyped capacities resulting in disadvantageous distinctions, and it is this concept of discrimination which s. 15 seeks to prohibit: Andrews, supra; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, 39 C.R.R. 306; Big M, supra; L. Smith and W. Black, "The Equality Rights", Beaudoin and Ratushny eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (1989) at p. 557; L. Smith, "Judicial Interpretation of Equality Rights Under the Canadian Charter of Rights and Freedoms: Some Clear and Present Dangers" (1988), 23 U.B.C. Law Rev. 65; M.D. Lepofsky, "The Canadian Judicial Approach to Equality Rights: Freedom Ride or Rollercoaster?" (1992), 1 N.J.C.L. 315; C. Sheppard, "Litigating the Relationship Between Equity and Equality", Study Paper for Ontario Law Reform Commission (1993).

This means that dictionary definitions of discrimination or equality are not fully instructive. The dictionary definition of equality is sameness; yet treating an individual the same despite differences may be denying that individual treatment as an equal. To discriminate, according to the dictionary, means to make distinctions; yet not all distinctions are discriminatory in the human rights sense. Only those distinctions, however benignly motivated, which perpetuate disadvantage for individuals in those groups already victimized by stereotypical attributions, are discriminatory distinctions caught by s. 15. There may be, on the other hand, real differences experienced by most members of a group which justify making distinctions on their behalf.

There is, however, a substantial difference between making distinctions to accommodate real differences in order to minimize disadvantage, and making distinctions based on perceived differences which have the effect of unduly perpetuating it. If a measure reduces the gap between disadvantage and advantage, it is not discriminatory. But if, in its design or impact, it widens the distance between amenities generally available and those accessible to the historically disadvantaged group, it is an unwarranted distinction and therefore discriminatory: see M. Eichler, "The Elusive Ideal -- Defining Equality" (1988), 5 C.H.R.Y.B. 167.

Membership in a group arbitrarily disadvantaged by a history of prejudice and stereotyping does not necessarily mean that every individual in it will feel its exclusionary impact. The fact that there are individuals who can successfully overcome discriminatory judgments and practices directed at their group does not lessen the impropriety of the discrimination. The possibility that, however disadvantaging, the distinction is nonetheless surmountable by intrepid members of the group, does not assist in determining whether it is justifiable at all. The practice or distinction must be examined in its overall social context. If, on the whole, there is a demonstrably verifiable historical and social pattern of arbitrary group disadvantage based on stereotypical group attributions rather than on the realities of the particular individual, then the group is entitled to the protective benefit of s. 15, regardless of whether the disadvantage is experienced the same way, or at all, by all members of that group.

In short, not all distinctions are discriminatory, not all differences are irrelevant, and not all disadvantage is inequality. Only those distinctions which perpetuate disadvantage based on differences which are irrelevant or arbitrarily ascribed to group membership are discriminatory and therefore violative of the equality guarantee. Sometimes group differences will have to be accommodated to prevent inequality; sometimes to achieve the same purpose they will have to be ignored.

Equality, traditionally understood as sameness, is not, therefore, what is necessarily comprehended by s. 15. It means sometimes treating individuals the same, despite their group differences, and it means sometimes treating them as equals by acknowledging their group differences: Royal Commission on Equality in Employment (1984), at p. 3. Every individual has the same right under s. 15 to be free from discrimination.

Equality, then, as guaranteed by s. 15, is an equal right on the part of every individual to be free from discrimination based on membership in a group historically disadvantaged by prejudicial assumptions. Equality is achieved in the reduction of inequality, inequality is the existence for individuals of arbitrarily imposed historic disadvantage flowing from group membership, and this is the form of disadvantage we mean by discrimination. We promote equality by reducing discrimination, and we reduce discrimination by reducing the gap between advantage and historic, arbitrary disadvantage.

The question in this appeal is whether s. 159 widens or reduces this gap for a historically disadvantaged group, or has an arbitrarily disparate impact on them.

There can be no doubt that gay and lesbian individuals have been historically disadvantaged. As Krever J.A. observed in Haig, supra, at p. 503:

The social context which must be considered includes the pain and humiliation undergone by homosexuals by reason of prejudice towards them.

(See Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, especially the dissent of L'Heureux-Dubé J., as well as the dissent of Linden J.A. in Egan v. Canada, 1993 CanLII 2947 (FCA), [1993] 3 F.C. 401, 103 D.L.R. (4th) 336 (C.A.) (leave to appeal to the Supreme Court of Canada allowed October 14, 1993).) The issue, therefore, is whether s. 159 violates s. 15 because it arbitrarily disadvantages individuals in an historically disadvantaged group. In my view it does.

The distinction found in s. 159 imposes a burden based on sexual orientation. It derives from statutory origins whose purpose was discriminatory -- to prevent gay sex. A predecessor provision, for example, stated that "any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour": Criminal Law Amendment Act, 1885, 48 and 49 Vict., c. 69, s. 11.

In my view, s. 159 arbitrarily disadvantages gay men by denying to them until they are 18 a choice available at the age of 14 to those who are not gay, namely, their choice of sexual expression with a consenting partner to whom they are not married. Anal intercourse is a basic form of sexual expression for gay men. The prohibition of this form of sexual conduct found in s. 159 accordingly has an adverse impact on them. Unmarried, heterosexual adolescents 14 or over can participate in consensual intercourse without criminal penalties; gay adolescents cannot. It perpetuates rather than narrows the gap for an historically disadvantaged group -- gay men -- it does so arbitrarily and stereotypically, and is, therefore, a discriminatory provision which infringes the guarantee of equality.

The grounds of age and marital status are also engaged, not only because s. 159 has a particularly disparate impact on how the consensual sexual choices of adolescent gay men are treated, but also because the exemption for "husband and wife" is clearly illusory for a gay couple. However, these grounds are inextricable from the conclusion that the violation of equality is based primarily on sexual orientation and, in my view, analytically offer no independent grounds upon which to found a s. 15 violation. The age and marital status grounds are triggered because they are aspects of how s. 159 disproportionately and arbitrarily disadvantages gay men; but absent their relationship to sexual orientation it is difficult to see how, on their own, they are violative of the equality guarantee. I agree, therefore, with the respondent's and intervenors' submissions that s. 159 of the Criminal Code arbitrarily disadvantages gay men and therefore violates s. 15 of the Charter on the grounds of sexual orientation.

(b) Section 1

Is this denial of equality justified under s. 1 of the Charter? Section 1 states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Crown advanced three legislative objectives, but relied only on the first as being sufficiently pressing and substantial to justify overriding the constitutionally protected right. The objectives originally advanced were:

1. to protect young persons from engaging in a specific form of sexual activity (anal intercourse) for which there are increased risks of physical and psychological harm, and, in particular, the increased risk for the transmission of H.I.V.;

2. to protect young persons, in their formative years for the development of sexual preferences, from engaging in non-usual sexual activities;

3. to reinforce and maintain certain fundamental moral values in Canadian society.

The Crown concedes that the second objective, fostering the development of sexual preferences, is no longer constitutionally defensible and, as such, is not a valid purpose. It also acknowledges that there is considerable uncertainty as to the scope of Parliament's right to enact laws based on perceptions of moral values as reflected in the third objective. However, the Crown asserts that the first objective, protecting young persons from the risks associated with anal intercourse, is a significant social goal. This, the Crown asserts, satisfies the first branch of the s. 1 inquiry.

To preserve the constitutionality of a limit designed to achieve a substantial social objective, however, the limit must be a reasonable one; that is, it must impair the guaranteed right "as little as possible": R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, 19 C.R.R. 308. The state must establish, in the second part of the s. 1 analysis, that there is a certain proportionality between the objective and the means chosen to achieve it: McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 at p. 280, 2 C.R.R. (2d) 1, per La Forest J. This means that:

The Court must examine the nature of the right, the extent of its infringement, and the degree to which the limitation furthers the attainment of the desirable goal embodied in the legislation. Also involved in the inquiry will be the importance of the right to the individual or group concerned, and the broader social impact of both the impugned law and its alternatives.

(Andrews, supra, per McIntyre J. at p. 184.)

The issue then comes down to this: is sending young persons to jail a reasonable way for the state to protect them from any risks associated with consensual anal intercourse?

If the prevention of harm by discouraging the risk is the objective, it is difficult to imagine a more intrusive way to protect an individual from harm than criminal prosecution. Far from minimally impairing the right to equality, the loss of liberty for a consensual form of sexual expression is, it seems to me, the most restrictive means possible for achieving the objective. The risk associated with unprotected sexual conduct is a health risk. It strikes me as decidedly inappropriate to deal with minimizing health risks at any age by using the punitive force of the Criminal Code, but especially so for young people.

The section is not designed to deal with the deliberate spreading of a known health risk. There are other provisions in the Code which are available to address this issue. Nor is it designed to deal with sexual exploitation. Again, there are other provisions in the Code which address this issue. It is, instead, a provision which criminalizes sexual conduct outright, unless the significantly higher age and marital requirements have been met, requirements that do not attach to any other Code provisions dealing with non-exploitive sexual conduct.

But, most significantly, unlike other provisions of the Code attempting to protect young persons from any harm associated with sexual conduct, only the provision prohibiting anal intercourse criminalizes the younger as well as the older person's participation. The threat of imprisonment is used not only to discourage a person over 18 from engaging in anal intercourse with someone under the age of 18, but this same threat also applies to the adolescent participant. Both participants are, uniquely, liable to substantial terms of imprisonment.

Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a provision criminalizing consensual anal intercourse for adolescents is that the health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with the behaviour, contribute to the harm it seeks to reduce.

Line-drawing exercises are, as the Supreme Court has held, proper functions of governments: R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, 50 C.R.R. 71. But the lines must be reasonable and demonstrably justified when Charter rights are involved. If health protection is the true objective of prohibiting anal intercourse, what is the rationale for drawing a line at all? Every individual, regardless of age, would logically be entitled to the protection. It is true that maturity varies with age, but susceptibility to H.I.V. transmission does not.

It is not enough for a government to assert an objective for limiting guaranteed rights under s. 1; there must, in my view, also be an underlying evidentiary basis to support the assertion. Since there is no empirical evidence that adolescents are more at risk of H.I.V. transmission than any other group, or that criminalizing their sexual behaviour protects them from this risk, there is, accordingly, no evidentiary foundation to support the government's first articulated objective.

When governments define the ambits of morality, as they do when they enunciate laws, they are obliged to do so in accordance with constitutional guarantees, not with unwarranted assumptions. Sending young people to jail for their own protection when they exercise sexual choices not exercised by the majority, represents, in my view, even if benignly intended, precisely such unwarranted assumptions. The line which has unjustifiably been crossed, therefore, is the one protecting an individual's right under s. 15 to be free from discrimination when the government imposes ambits of morality.

The health risks from unprotected anal intercourse are real and ought to be aggressively addressed. But in my view, the measures chosen in s. 159 to protect young people from risk are arbitrary and unfair, compared to the measures used to protect against the health risks for individuals who prefer other forms of sexual conduct. There is no evidence that threatening to send an adolescent to jail will protect him (or her) from the risks of anal intercourse. I can see no rational connection between protecting someone from the potential harm of exercising serial preferences and imprisoning that individual for exercising them. There is no proportionality between the articulated health objectives and the draconian criminal means chosen to achieve them.

The right to equality and to freedom from discrimination based on sexual orientation, and on the related grounds of age and marital status, are profoundly impaired by the possible loss of liberty for this form of consensual sexual conduct. The means chosen to limit this guaranteed right are, in my view, neither reasonable nor demonstrably justified in a free and democratic society. The infringement of s. 15 of the Charter, accordingly, is not sustainable under s. 1. (See also Halm v. Canada (Minister of Employment & Immigration), a decision of Reid J., Federal Court (Trial Division), released February 24, 1995 [now reported 1995 CanLII 3573 (FC), 27 C.R.R. (2d) 23].)

The Crown concedes that the only appropriate remedy for a violation of s. 15 in the circumstances of this case is to declare s. 159 to be of no force or effect pursuant to s. 52 of the Constitution Act, 1982. This conclusion makes it unnecessary to determine whether the provision is also unconstitutional because it infringes s. 7 of the Charter.

The appeal is dismissed.

GOODMAN and CATZMAN JJ.A. (concurring): -- We have had the benefit of reading, in draft form, the reasons for judgment of our colleague Abella J.A. While we agree with her that this appeal should be dismissed, we prefer to rest our decision on a narrower ground than does she.

In his supplementary appellant's factum, counsel for the Crown conceded that s. 159 of the Criminal Code, R.S.C. 1985, c. C-46, draws a distinction based upon the ground of age, enumerated in s. 15 of the Canadian Charter of Rights and Freedoms, and that this distinction is discriminatory in that a person under the age of 18 cannot, without the risk of criminal prosecution and potential liability to imprisonment for up to ten years, engage in acts of anal intercourse with a person 18 years of age or older.

We agree with the appellant's concession that s. 159 constitutes an infringement of s. 15 on the ground of age, and note that a similar concession was made by the Crown in Halm v. Canada (Minister of Employment & Immigration) (Federal Court of Canada, Trial Division, February 24, 1995, as yet unreported [now reported 1995 CanLII 3573 (FC), 27 C.R.R. (2d) 23]).

On the question whether this admittedly discriminatory effect of s. 159 can be justified under s. 1 of the Charter, we agree with that portion of the reasons for judgment of Abella J.A. that concluded that s. 159 cannot be so justified.

We do not consider it necessary, for the disposition of this appeal, to consider any of the other s. 15 grounds addressed in the reasons for judgment of Abella J.A.

We would dismiss the appeal, and declare s. 159 of the Criminal Code to be of no force and effect.

Appeal dismissed.