Judgments

[1995] 2 F.C. 331

IMM-7073-93

Henry Halm (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Halm v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Reed J.—Toronto, February 6, 7, 8, 9; Ottawa, February 24, 1995.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Applicant convicted, in U.S.A., of sodomy — No equivalent offence in Canada as Criminal Code, s. 159 (prohibiting anal intercourse with persons under 18) contrary to Charter, ss. 7, 15.

Constitutional law — Charter of Rights — Life, liberty and security — Criminal Code, s. 159 (prohibiting anal intercourse with persons under 18) violating Charter, s. 7 as without constitutionally valid purpose, alleged purpose not rationally connected to impugned provision, effects not proportionate to purpose — Ten-year jail sentence (penalty under s. 159) engaging Charter, s. 7.

Constitutional law — Charter of Rights — Equality rights — Discrimination on basis of age, against homosexual males — Criminal Code, s. 159 (prohibiting anal intercourse with persons under 18 ) violating Charter, s. 15 as without constitutionally valid purpose, alleged purpose not rationally connected to impugned provision, effects not proportionate to purpose.

Judicial review — Immigration Adjudicator’s decision to proceed with inquiry on inadmissibility under Immigration Act, s. 19 without counsel not violating natural justice principles where Adjudicator had adjourned five times to allow applicant to get lawyer.

There were reasonable grounds to believe that the applicant, neither a Canadian citizen nor a permanent resident, had been convicted of an offence outside Canada which, if committed in Canada, would have constituted an offence punishable by a maximum term of imprisonment of ten years or more. He had been convicted, inter alia, of five counts of sodomy in the third degree in the United States. This was an application to set aside the conditional deportation order issued against the applicant.

The applicant’s main argument was that there was no comparable offence in Canada because section 159 of the Criminal Code (which prohibits anal intercourse with persons under 18) was unconstitutional as violating sections 7 and 15 of the Charter.

Held, the conditional deportation order should be set aside.

The argument that the applicant was denied his right to counsel was unfounded. The Adjudicator decided to proceed with the inquiry to determine whether the applicant was a member of an inadmissible class described in subparagraph 19(1)(c.1)(i) of the Immigration Act only after having adjourned five times to allow the applicant to retain and instruct counsel.

There were reasonable grounds to believe that the applicant had been convicted outside of Canada of an equivalent offence.

If there was no Criminal Code offence because section 159 was unconstitutional, then, the Adjudicator’s decison would have been based on an error of law which under the ordinary common law principles of natural justice would have vitiated that decision. Furthermore, the Adjudicator’s decision would attract the application of section 7 of the Charter since at the very least, the security of the person of an individual who was subject to a deportation order was engaged.

There was no dispute that the applicant was entitled to challenge the validity of section 159 even though he was doing so indirectly, in the context of deportation proceedings, and not as a result of having been charged or convicted under section 159.

Although certain comments in Rodriguez v. British Columbia (Attorney General) (to the effect that security of the person encompasses personal autonomy, control over one’s physical and psychological integrity, and basic human dignity) could be interpreted as carving out a broader area than just physical security, it was not necessary to decide the issue since a consequence of being convicted under section 159 could be a ten-year jail sentence, clearly engaging the “liberty or security of the person.”

Section 159 of the Criminal Code discriminates on the basis of sexual orientation which is an analogous ground to those specifically listed in section 15 of the Charter and it discriminates on the basis of age because other comparable provisions of the Code relating to sexual activities stipulate the age of consent as 14.

Once discrimination under section 15 had been found to exist, that discrimination must then be assessed in the light of section 1 of the Charter to determine whether it meets the test of being “demonstrably justified in a free and democratic society.”

For the purpose of both section 7 and section 15, one must examine: (1) whether there is a rational connection between the objective and the means chosen to attain it; (2) whether the chosen means impair the rights as little as possible; and (3) whether there is a proportionality between the effects of the means and the legislative objectives.

The purpose must be assessed as of the date of the law’s enactment (in this case, the 1988 amendment to section 159) and one cannot justify a provision by relying upon a purpose that the provision might have come to serve at a later time (in this case, to protect youth from the risk of HIV transmission by anal intercourse). In a free and democratic society, it is not justifiable to make an activity criminal merely because a segment, indeed maybe a majority, of the citizenry consider it to be immoral. The reinforcement of moral precepts and the inhibition of homosexual youth from acknowledging their sexual orientation at an early age are not purposes which can support making the activity in question a Criminal Code offence. The evidence did not establish that prevention of HIV transmission was a purpose of section 159.

Section 159 does not have a constitutionally valid purpose. The alleged purpose could not be rationally connected to the impugned provision, the effects of which were not proportionate thereto.

There was no evidence of unfairness in the choice of deportation proceedings, rather than extradition, even though there are guarantees under extradition proceedings which do not exist in deportation. There was nothing inherently unfair in a foreign state delaying extradition proceedings when it is known that the individual is likely to be deported.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24.

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15.

Criminal Code, 1892 (The), S.C. 1892, c. 29.

Criminal Code, R.S.C. 1970, c. C-34, s. 253 (rep. by S.C. 1985, c. 19, s. 42).

Criminal Code, R.S.C., 1985, c. C-46, ss. 153 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 1), 159 (as am. idem, s. 3).

Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38.

Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 42.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Immigration Rules, SOR/89-26.

Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c.1) (as enacted by S.C. 1992, c. 49, s. 11), 83(1) (as am. idem, s. 73).

CASES JUDICIALLY CONSIDERED

APPLIED:

Espinoza v. Minister of Employment and Immigration (1992), 142 N.R. 158 (F.C.A.); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (1991), 85 D.L.R. (4th) 166 (C.A.); R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; Kindler v. MacDonald, [1987] 3 F.C. 34 (1987), 41 D.L.R. (4th) 78; 26 Admin. L.R. (2d) 186; 3 Imm. L.R. (2d) 38; 80 N.R. 388 (C.A.); Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 766; 52 C.C.C. (3d) 388 (H.C.); affd (1989), 70 O.R. (2d) 765; 52 C.C.C. (3d) 386 (C.A.).

CONSIDERED:

R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; 158 N.R. 1; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; [1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56 C.C.C. (3d) 65; 77 C.R. (3d) 1; 109 N.R. 81; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81.

REFERRED TO:

Attorney General of Canada v. Jolly, [1975] F.C. 216; (1975), 54 D.L.R. (3d) 277; 7 N.R. 271 (C.A.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (1990), 67 D.L.R. (4th) 697; 42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Duke v. The Queen, [1972] S.C.R. 917; (1972), 28 D.L.R. (3d) 129; 7 C.C.C. (2d) 474; 18 C.R.N.S. 302; R. v. Vaillancourt, [1987] 2 S.C.R. 636; (1987), 68 Nfld. & P.E.I.R. 281; 47 D.L.R. (4th) 399; 209 A.P.R. 281; 39 C.C.C. (3d) 118; 60 C.R. (3d) 289; 32 C.R.R. 18; 81 N.R. 115; 10 Q.A.C. 161; R. v. Martineau, [1990] 2 S.C.R. 633; (1990), 109 A.R. 321; [1990] 6 W.W.R. 97; 76 Alta. L.R. (2d) 1; 58 C.C.C. (3d) 353; 79 C.R. (3d) 129; 50 C.R.R. 110; 112 N.R. 83; R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 7 C.R. (4th) 117; 128 N.R. 81; Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839.

AUTHORS CITED

Brown, Desmond H. The Genesis of the Canadian Criminal Code of 1892. Toronto: Univ. of Toronto Press, 1989.

Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children. Ottawa: Minister of Supply and Services Canada, 1984 (Chair: Robin F. Badgley).

Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15 An Act to amend the Criminal Code and the Canada Evidence Act, 2nd Sess., 33rd Parl., 1986-1987.

Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-150, 1st Sess., 28th Parl., March 4, 1969.

Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada. Ottawa: Minister of Supply and Services Canada, 1985 (Chair: Paul Fraser).

De Smith’s Judicial Review of Administrative Action, 4th ed. by J. M. Evans. London: Stevens & Sons, 1980.

Goodich, M. “Sodomy in Medieval Secular Law” (1976), 1 J. Homosexuality 295.

Great Britain. Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247. London: H.M.S.O., 1957 (Chair: Sir John Wolfenden).

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.

House of Commons Debates, vols. V-VI, 1st Sess., 28th Parl., 1969.

House of Commons Debates, vols. VII-VIII, 1st Sess., 28th Parl., 1969.

House of Commons Debates, vol. I, 2nd Sess., 33rd Parl., 1986.

House of Commons Debates, vol. VI, 2nd Sess., 33rd. Parl., 1987.

Parker, G. “The Origins of the Criminal Code”, in D. H. Flaherty (ed.), Essays in the History of Canadian Law, vol. 1. Toronto: Univ. of Toronto Press, 1981.

APPLICATION to set aside a conditional deportation order on the ground there was no offence in Canada comparable to those of which the applicant had been convicted in the United States because section 159 of the Criminal Code was unconstitutional. Application allowed.

COUNSEL:

Paul Slansky for applicant.

Donald MacIntosh and Anne Marie Waters for respondent.

SOLICITORS:

Paul Slansky, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: This is an application to set aside a conditional deportation order. The applicant has been ordered deported on the ground that he is neither a Canadian citizen nor a permanent resident and there are reasonable grounds to believe that he has been convicted of an offence outside Canada, which if committed in Canada would constitute an offence punishable by a maximum term of imprisonment of ten years or more. The applicant was convicted, in New York State, United States of America, of five counts of sodomy in the third degree and three counts of endangering the welfare of a child. There is no offence in Canada comparable to the latter which carries a penalty of ten years imprisonment. Four of the sodomy convictions are relied upon as the foundation for the deportation order.

The applicant’s main argument is that there is no comparable offence in Canada to those of which he has been convicted in the United States because section 159 of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 3)] is unconstitutional. Section 159 makes anal intercourse, in certain circumstances, an offence. It is argued that that offence is contrary to the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] because it establishes 18 as the age below which individuals cannot consent to engage in such acts. The age of consent for other sexual activity, including vaginal intercourse, is 14. This, it is argued, creates an arbitrary and discriminatory distinction designed to discourage homosexual males from acknowledging their homosexuality at an early age. As such, the provision is said to have an invalid legislative purpose and to be contrary to both section 7 and section 15 of the Canadian Charter of Rights and Freedoms. I should note that the sexual exploitation of 14 to 18-year olds is governed by a separate provision of the Code, section 153 [as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 1], and is not in issue here.

The applicant challenges the deportation order on a number of other grounds as well. The applicant’s arguments will be dealt with in the following order: (1) whether he was denied his right to counsel; (2) whether the Adjudicator’s decision was improperly founded because there was insufficient evidence in front of him to enable him to conclude that the offences of which the applicant had been convicted were equivalent to offences in Canada; (3) whether section 159 of the Criminal Code is unconstitutional as contrary to the Charter; (4) whether the deportation order is in fact a disguised extradition.

Right to Counsel

The applicant argues that the right to counsel must include a reasonable length of time within which to retain counsel, including enough time to make financial arrangements to pay counsel. It is argued that this is particularly so in a situation such as the present where: the consequences for the applicant are very severe; the arguments to be made on his behalf are technical and legal (not factual); there was no need for a speedy resolution of the applicant’s status.

I agree that the right to counsel includes being given a reasonable amount of time to retain and instruct counsel and that this includes sufficient time to make financial arrangements. What is a reasonable opportunity to retain and instruct counsel, however, will vary according to the circumstances of the particular case. The jurisprudence has established that the right to counsel does not include the right to a counsel who is paid at public expense.

In this case the applicant was unsure whether or not he would be represented by counsel because he was unsure whether he would receive legal aid funding. The Adjudicator granted the applicant five adjournments, albeit short ones, to allow him to retain counsel. The Adjudicator then decided to proceed with the inquiry in the absence of counsel. A description of what occurred follows.

The applicant was arrested on April 16, 1993. Ten days later, on April 26, 1993, an inquiry was commenced to determine whether the applicant was inadmissible to Canada because he was a member of an inadmissible class described in subparagraph 19(1)(c.1)(i) of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by S.C. 1992, c. 49, s. 11)].[1] On April 26, 1993, the Adjudicator asked the applicant if he had been informed that he had the right to be represented by counsel and told him that the inquiry would be adjourned to allow him to arrange for such if he so wished. The applicant indicated he so wished and that he would contact attorney Sappiano to find out when he might be available. The Adjudicator instructed the applicant:

… what I expect you to do … is contact Mr. Sappiano, or any other lawyer that you want to represent you. Tell them that your inquiry is going to take place on that day [April 30, 1993]. And either have them present for your inquiry, or have them give you information, or give you a letter telling me when they can be present in the near future.

On April 30, 1993 the inquiry resumed and the applicant was neither represented by counsel nor did he have a letter describing counsel’s availability. The applicant indicated that he had contacted the law firm of Quinter, Lockyer and Penovski (correct name is Pinkofsky, Lockyer, Kwinter).

At that hearing, the case presenting officer stated that he had heard from a Mr. Slansky who had stated he would be representing Mr. Halm. He stated that Mr. Slansky had asked to be advised of the date of the next hearing. The case presenting officer stated that he did not remember the conversation too well and had lost Mr. Slansky’s telephone number. He hoped that Mr. Halm would be able to provide it. The applicant stated that Mr. Slansky was not representing him, that it was another law firm and that that other law firm was going to interview him two days later, on Sunday.

The Adjudicator instructed the applicant to inform his lawyer that there had already been two sittings of the inquiry and that on the day to which the inquiry was being adjourned, May 4, 1993, “if they aren’t here with you, I expect you to have a letter from whichever lawyer is representing you, telling me when he can come in the near future.”

On May 4, 1993 the inquiry resumed. No counsel was in attendance. The applicant informed the Adjudicator that he had been interviewed by attorney Ragonetti and that Mr. Ragonetti had said he would fax the information respecting his availability, which the Adjudicator had requested on April 30th, 1993. No such information was received by either the Adjudicator or the case presenting officer, either before or after May 4, 1993.

The Adjudicator confirmed with the applicant that he had told his lawyer that the resumption of the hearing had been scheduled for May 4, 1993. The Adjudicator adjourned again, with the admonition that “on the next day … what I will do, if I haven’t been contacted in the meantime by your counsel, is proceed with your inquiry whether you’re represented by counsel or not.” He continued “if I get a fax in the meantime and I can reschedule, if that’s necessary, I will. But if I have no contact at all … then … I’ll force you to proceed with the inquiry without counsel.” The inquiry was adjourned to May 12, 1993.

On May 12, 1993, a fax was received by the case presenting officer, which was read into the record. It indicated that Mr. Slansky had been approached to represent Mr. Halm but was not yet retained. The letter indicated that two to three weeks would be needed to arrange for the retainer and that Mr. Halm would be challenging the proceedings on the basis that they were disguised extradition proceedings. The letter indicated that Mr. Slansky would contact the case presenting officer once he was retained. The Adjudicator told the applicant that this was not acceptable, that he was not prepared to adjourn the inquiry on that basis:

… I told you quite clearly that I was going to proceed with your inquiry today, unless you came here and gave me dates when a lawyer would be available. Coming and telling me that, in effect, that you’ve spoken to a lawyer who will represent you if he can somehow get paid … but he doesn’t know if he can get paid … is just delaying the inquiry as far as I’m concerned. It’s unsatisfactory.

And his assurance that he will contact Mr. Lambert once he’s been retained …. If I were to follow what he’s asking, it virtually takes the control of the inquiry right out of my hands. And I have to wait for some lawyer, who might not even represent you, to phone Mr. Lambert and tell us when he’s good-and-ready for your case to take place, is just not satisfactory at all ….

The applicant indicated that it was legal aid that was causing the delay. The Adjudicator stated that legal aid had nothing to do with his concerns but he was still prepared to adjourn the inquiry yet again:

You surely have a right to be represented by counsel, but you don’t have a right to make me wait for an indefinite period of time while you get counsel.

Now, because of what you’ve said, and because of the contents of this letter from the lawyer, I’m going to adjourn your inquiry once again.

But I’m not going to adjourn it on his terms. And you’d better contact him and tell him this. I don’t intend to.

He’s not even officially saying that he’s representing you. What he’s doing is just saying: will you guys wait with this, while I decide whether I’m going to represent this man.

…

Okay, I’m going to adjourn for another week, roughly. We’ll pick a date next week. And what I’m going to require you to come back with on that day is something from Mr. Slanski [sic] saying when Legal Aid will make a decision, if they haven’t already made one. Or when he can be here. And I may proceed on the next day. If I hear that it’s going to take Legal Aid a long time to make a decision, I’m not going to wait for their decision.

The inquiry was adjourned until May 20, 1993.

On May 20, 1993, the applicant was not represented by counsel. Mr. Halm informed the Adjudicator that Mr. Slansky was sick with the flu but that legal aid had informed him that he had been approved “but they want an opinion paper or some type of paper concerning the merits of the case.” The discussion which followed makes it clear that the Adjudicator was confused by what the applicant was saying:

ADJUDICATOR: You spoke to someone from Legal Aid who told you that a certificate had been approved?

PERSON CONCERNED: Yes. They came to the jail last Thursday. Wednesday or Thursday. Had a certificate in the envelope and said it’s been approved. They asked me if I wanted it or wanted it sent to the attorney. And I said, you know, send it to the attorney. And then he calls me and says they’ve approved it, but they want some kind of information dealing with the case. I have no idea what it’s all about.

ADJUDICATOR: It is very strange circumstances. This doesn’t make a lot of sense to me. However, what I’m going to do since perhaps you do have a certificate now, I can’t really tell from what you’ve said, and since you tell me that your counsel was quite ill when you spoke to him, is that I’m going to adjourn once again.

I don’t like doing this, simply because I don’t know whether I’m going anywhere or whether I’m really waiting for anything.—I can’t be quite sure, because what you’ve told me doesn’t … it just seems a little strange.

If there was a certificate, and it was approved and someone from Legal Aid even went so far as coming to see you and telling you this, why I haven’t heard from your lawyer about whether he’s going to represent you, considering the things that I warned you about on the last day, is really hard for me to understand.

The Adjudicator explained in very clear terms that the inquiry would be adjourned once again, this time to May 28, 1993, and that if counsel did not contact him, or if he did not receive a letter indicating when counsel might be available, the inquiry would proceed peremptorily. The Adjudicator explained in non-technical language what peremptorily meant.

On May 28, 1993, the inquiry was resumed but counsel was not present nor had any fax or letter been received by the Adjudicator or the case presenting officer. The Adjudicator questioned the applicant as to whether he had told his lawyer about the instructions of May 20, 1993. The applicant indicated that he had and that his counsel had said he was going to either give the applicant something to present to the Adjudicator or was going to fax something to the Adjudicator. The Adjudicator adjourned the inquiry to see if any communication had arrived in his office. None existed. He concluded that a reasonable period of time had been given to the applicant to retain and instruct counsel and that the inquiry would proceed.

Counsel for the applicant argues that this is a very serious case, the legal issues involved are substantial and technical, the applicant could not effectively present those arguments himself, there was no great need to rush the proceedings and that the Adjudicator should have allowed enough time for the applicant’s legal aid application to be processed. In fact legal aid never was granted—Mr. Slansky is acting pro bono.

I agree that an undue rushing of an inquiry could deny an applicant the right to a fair hearing. But in this case the Adjudicator adjourned five times to allow the applicant to obtain some sort of firm commitment that counsel would be representing him. The Adjudicator’s comment that if he were to continue to adjourn on that basis, he would effectively be relinquishing control over the timing of the proceedings to the applicant, his counsel and the legal aid authorities, is correct.

The comments of Mr. Justice Mahoney, in a different context, in Espinoza v. Minister of Employment and Immigration (1992), 142 N.R. 158 (F.C.A.) are apposite. He refused an adjournment for the purpose of awaiting the processing of a legal aid application. He indicated that the policy of the Immigration Act and Federal Court Immigration Rules [SOR/89-26] with respect to the expeditious disposition of proceedings took precedence.

On reading the transcripts of the hearings, I was struck by how fair and patient the Adjudicator was. Perhaps if he had had a more complete explanation and information available to him he would have agreed to yet a further adjournment. He gave the applicant the two to three weeks requested by his counsel in the 12th of May letter. During the 12th of May hearing he indicated that he would take into account when legal aid might make a decision, but he was not willing to wait indefinitely. The confusion and misunderstanding which existed is something for which the applicant must take responsibility. To the extent that a reasonable length of time to retain and instruct counsel may depend on the particular personal circumstances of an individual, that individual is responsible for communicating them to the decision-maker. The Adjudicator’s decision, as to what was a reasonable period of time in this case, was based on the information given to him by the applicant. The decision which the Adjudicator made was fair and reasonable. There was no breach of natural justice in proceeding without counsel on May 28, 1993.

Counsel for the respondent argues that natural justice and fundamental justice are not co-incident concepts but different and overlapping ones. Thus, it is argued, there is an area of common law natural justice which falls outside the constitutionally protected area of fundamental justice. It is argued that since that excluded area is not constitutionally protected, it can be abrogated by statute, as was the case for all common law natural justice principles prior to the enactment of the Charter. I do not need to decide this point for the purposes of this case but I do not want to be taken as endorsing it.

Equivalence

The applicant was charged in the state of New York with having committed ten offences. These are described in a summary fashion in his application record:

1) Sodomy in the 1st degree (forcible oral sex);

2) Sodomy in the 3rd degree (oral sex with someone less than 17 years old);

3) Endangering the welfare of a child; (showing pornographic film to male under age of 16 years and masturbating self in front of “child”);

4) Sodomy in the 3rd degree (oral and anal sex with someone less than 17 years old);

5) Sodomy in the 3rd degree (oral and anal sex with someone less than 17 years old);

6) Sodomy in the 3rd degree (oral sex with someone less than 17 years old);

7) Sodomy in the 3rd degree (oral and anal sex with someone less than 17 years old);

8) Sexual abuse in the 3rd degree (touching the penis of a 15 year old);

9) Endangering the welfare of a child (showing pornographic films to a male under age of 16 years and masturbating in front of “child”);

10) Endangering the welfare of a child (showing pornographic film to a male under age of 16 years).

He was acquitted of the first charge because the jury found that the complainants had consented to the activity in question. He was acquitted of the eighth charge.

The Canadian Criminal Code offence to which the offences numbered 4, 5, 6 and 7 were found to be equivalent is section 159:

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 …

In Canada, oral sex is not a crime. The text of the New York State law pursuant to which the applicant was convicted (sodomy in the third degree) makes it an offence to engage in “deviate sexual intercourse.” Counsel’s argument, as I understand it, is that while the description of the offences with which the applicant was charged (numbered 4 to 7 above) refer to both oral and anal sex, a guilty finding might have been permissible under the New York law, even if the jury had found that the acts committed did not include anal sex. He therefore argues that there was insufficient evidence before the Adjudicator to enable him to conclude that there was an equivalence between the offences of which Mr. Halm had been convicted in New York and the Canadian Criminal Code offence.

This argument is not convincing. In the first place, Mr. Halm raised, in the course of his hearing before the Adjudicator, the argument that he “could have been convicted” of oral sex, “not necessarily anal sex.” The case presenting officer indicated that he had proof that anal sex was involved but that he had not thought Mr. Halm was going to be contesting that point. Mr. Halm agreed that he did not “want to go this far.” He also indicated that he had no idea about the legal arguments he was trying to make. It was clear that Mr. Halm understood that oral sex was not a crime in Canada. He had an opportunity to state that he had not been found to have engaged in anal intercourse, if that had been the case. He could have directly stated that he had not been convicted of anal sex. He did not do so. It is reasonable to conclude from his comments that he was not contesting that point.

The Adjudicator is required under section 19 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 49, s. 11] of the Immigration Act to determine if the applicant is a person with respect to whom there are reasonable grounds to believe that he has been convicted outside of Canada of an equivalent offence. There is no need to prove the equivalency beyond a reasonable doubt. All that is required are “reasonable grounds to believe.”[2] There was certainly enough evidence before the Adjudicator, to support his conclusion in this regard.

Constitutionality of Section 159 of the Criminal Code

Counsel for the applicant argues that section 159 is unconstitutional as being contrary to sections 7 and 15 of the Charter. The Charter arguments will be discussed by first describing the context within which they arise—an inquiry leading to a deportation order —and then discussing the submission made respecting sections 7 and 15.

(1)       Context—Deportation Proceeding

The applicant is challenging, by way of judicial review, the decision of the Adjudicator which led to the issuance of a deportation order against him. In that context, the ordinary principles of administrative law, apply. One such principle is that a decision of a quasi-judicial decision-maker (in this case the Adjudicator) will be set aside if there is an error of law on the face of the record or an error of law that goes to the jurisdiction of the decision-maker. Indeed, under paragraph 18.1(4)(c) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], the error of law need not even be on the face of the record.[3] The Adjudicator, in this case, found there to be an equivalency between a New York State offence and a Canadian Criminal Code offence. This is at the heart of the decision leading to the deportation order. If in fact there is no Criminal Code offence because section 159 is unconstitutional, then, the Adjudicator’s decision would be based on an error of law which under the ordinary common law principles of natural justice would vitiate that decision.

In addition, the Adjudicator’s decision will attract the application of section 7 of the Charter if it is one that deprives the applicant of “life, liberty and security of the person.” Counsel for the respondent argues that it is unclear whether a deportation order constitutes a deprivation of an individual’s liberty. In Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 the Federal Court of Appeal held that a deportation order engaged an individual’s liberty interest. While the decision of the Federal Court of Appeal in the case was upheld, the Supreme Court[4] did not find it necessary to make a decision on this point. On the other hand, in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, the Federal Court of Appeal had earlier held that deportation (for a serious crime) did not engage an individual’s liberty interest. Thus, the jurisprudence on this point seems divided.

Whether or not an individual’s liberty interest is engaged, however, I understand both counsel to agree that at the very least the security of the person of an individual who is subject to a deportation order is engaged. See Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 and the comments of Mr. Justice Linden in Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581(C.A.), at pages 587-588. Indeed, it is difficult to see how the decision could be otherwise. The applicant in this case is in detention. He is not to be allowed to stay here as a visitor. He will be forcibly returned to a country to which he does not wish to go instead of being allowed to depart voluntarily to the country of his choice.

Thus, whether one is operating solely under the common law principles of natural justice, or also invoking section 7 of the Charter, the result in my view is the same. If the applicant can demonstrate that the Adjudicator made a decision based on an error of law because an equivalent Canadian offence does not exist, then, that decision must be set aside.

I note, as well, that there is no dispute that the applicant is entitled to challenge the validity of section 159 even though he is doing so indirectly, in the context of the deportation proceedings, and not as a result of having been charged or convicted under section 159. This follows from the Supreme Court’s decision in R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, at pages 312-314. In that case, the Chief Justice held that even though a corporation could not benefit from the constitutional guarantee of freedom of religion, it still had the right to challenge the validity of a law on the ground that the law infringed that guarantee. He emphasized that it was the nature of the law, not the status of the accused which was in issue. If a legislative provision is constitutionally invalid, it is constitutionally invalid for all purposes.

(2)       Section 7

I turn then to the argument that section 159 of the Criminal Code is unconstitutional as in conflict with section 7 of the Charter. Section 7 states:

7. 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.

There are two questions to address: (1) what is the right which section 159 infringes that can be characterized as a matter of life, liberty or security of the person? and (2) assuming such a right is found, what is the principle of fundamental justice that is not complied with when someone is convicted of an offence under section 159?

Counsel for the applicant and counsel for the respondent characterized the right which is abrogated by section 159 at different levels of abstraction. Counsel for the applicant categorized the right as the right to control one’s body without state interference. A less general characterization of the right could be said to be the right to engage in consensual sexual activity. Counsel for the respondent, however, would characterize the right as the right to engage in anal intercourse.

Counsel for the applicant’s argument that section 7 encompasses the right to control one’s body without state interference is based upon the Supreme Court decisions in R. v. Morgentaler, [1988] 1 S.C.R. 30 and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. In the latter, Mr. Justice Sopinka referred to the decision in Morgentaler as well as to that in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123. He concluded that section 7 encompasses notions of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference, as well as freedom from state-imposed psychological and emotional stress. He wrote:

There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.[5]

Counsel for the respondent argues that the comments in Morgentaler and Rodriguez must be related to the particular facts of those cases. He asserts that the right to control one’s body, in the broadest sense, cannot be what was meant. He points out that those cases dealt with the physical integrity of the individual (arising out of concerns such as health and life). While sexual activity may be an important aspect of human life, it is argued that it is not of the same order of importance as physical security or integrity. I would interpret the comments in Rodriguez as carving out for protection a broader area than just physical security. It is not necessary to decide this issue, however, since I would find it difficult, in any event, to conclude that section 159 does not engage the “liberty or security of the person.” A consequence of being convicted of the offence described therein can be a ten-year jail sentence. That alone would seem to me to engage section 7 of the Charter.

I turn, then, to the concept “principles of fundamental justice.” It has been clear, since the decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (hereinafter B.C. Motor Vehicles), that fundamental justice encompasses more than just natural justice or what is labelled in the United States as procedural due process. This is so despite the fact that there was some respected authority which equated the two terms, see for example, De Smith’s Judicial Review of Administrative Action, (4th ed., 1980, at page 157), the Canadian Bill of Rights, R.S.C., 1985, Appendix III, paragraph 2(e) and Duke v. The Queen, [1972] S.C.R. 917, at page 923. The Supreme Court held that if only procedural guarantees were involved, the more common term “natural justice” would have been used by the drafters of the Charter. The concept “principles of fundamental justice” has been held to encompass “the basic tenets and principles, not only of our judicial process, but also of other components of our legal system.”[6] This has not proved to be an easy concept to define because there is no readily identifiable body of law to give it content. The arguments of counsel, in this case, demonstrate this difficulty.

Counsel for the applicant argues that in arriving at a conclusion as to whether or not a particular law violates the principles of fundamental justice, it is necessary for the Court to undertake a balancing of the individual and state interests in the particular law. In the Rodriguez decision, Mr. Justice Sopinka wrote: “[w]here the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.”[7] Reference was made to the Morgentaler decision. Thus it is a principle of fundamental justice that a right listed in section 7 cannot be impaired by any law unless that law is appropriate to (proportional to) the harm which Parliament or a provincial legislature seeks to address.

With respect to the particular legislative provision in the present case, counsel for the applicant argues that it does not meet the balancing test because it establishes a different age threshold for consensual anal intercourse from that applicable to other forms of sexual activity. He argues that its purpose is to discourage homosexual youth from acknowledging their sexual orientation. He argues that in addition to exposing them to a ten-year jail term, this imposes unjustified psychological and emotional stress on them and that the purpose of the section is an invalid one.

Counsel for the respondent argues that all provisions based on age are arbitrary and that the age difference in this case is not so arbitrary as to infringe the constitutional principle of balance relevant for section 7 purposes. He concedes that to the extent the provision has as its purpose the discouraging of the recognition by youth of their homosexual orientation, the provision would have an invalid purpose. However, he does not concede that this is the sole purpose of section 159. Nor does he concede that a principle of fundamental justice is identified, in the manner which counsel for the applicant has adopted, that is, by undertaking a balancing of the state versus private interests.

Counsel for the respondent argues that the principles of fundamental justice are found in “an analysis of the nature, sources, rationale and essential role of [the alleged principle] within the judicial process and in our legal system, as it evolves.”[8] Counsel for the respondent argues that to determine whether an alleged principle is fundamental to our legal system one must look at “the common law and the legislative history of the offence in question,” at the law in other jurisdiction as well as at “the rationale behind that practice and the principles which underlie it.”[9] He identifies the “tenet” for which justification is sought, in this case, as the right to engage in anal intercourse. He looks at the legislative history of such activity as the subject of an offence in the common law and the prevalence of similar offences in the criminal law of other countries. The legislative history of the provision and the role it has played in the past, of course, cannot lead to a conclusion that the right to anal intercourse is a basic tenet of our legal system.

This method of analysis is clearly circular. Counsel for the respondent has defined the right under section 7 at too low a level of abstraction and has also described it in the same terms as the basic tenet of our legal system for which validation is sought. I would expect that this kind of analysis would in general lead to claimed rights being denied more often that not, at least, when that right was what might be labelled a “relic from the past.” Mr. Justice Sopinka rejected this type of circular reasoning in the Rodriguez case.[10]

I note that while the references to the legislative antecedents to section 159 lead to the conclusion as noted above, the review of comparative international sources makes it clear that most modern democratic states do not adopt the age differentiation found in section 159. At the same time, a review of those provisions indicates that the age chosen for consensual sexual activity falls within a range and is not uniform.

I return then to counsel for the applicant’s argument that the “basic tenets of our judicial system” require, in each instance, a balancing of the state interests against individual interests to see if the limitation which has been imposed on the right to liberty or security of the person is justified. That analysis would seem to be synonymous with the type of analysis which is undertaken when any breach of a Charter right is assessed for validity under section 1. It would seem also to expand section 7 so that it becomes an omnivorous section, eclipsing many other provisions of the Charter. At the same time, the extent to which what is a principle of fundamental justice becomes equated with societal acceptance of certain values, the values protected thereby may become attenuated. After all, Parliament is presumed to operate in conformity with the societal values of the majority. Yet the Charter was designed as a bulwark against such opinions—as protection for individual rights in the face of the views of the majority.

As a trial judge, I recognize that the development of the common law is the result of alternating expansions and contractions. At one stage, general principles are enunciated by judicial pronouncement. These, over the course of time, eventually become articulated in more specific terms until, often, a fairly rigid system of jurisprudential rules develop. These will remain until the rules are again “blown open” by a general judicial pronouncement. When an area of law has been “blown open,” by a decision of the highest court, it is very difficult, in the initial stages thereafter, for a lower court to determine exactly how decisions are to be made. I find this to be the case with the admonition that when dealing with section 7, one is to identify the “basic tenets and principles, not only of our judicial process, but also of other components of our legal system.”

If the B.C. Motor Vehicles case had not contained the broad definition referred to above, I would have interpreted section 7 as being somewhat analogous in nature to the principles encompassed by the rules of natural justice. I would not see it as requiring the Court, in every instance, to evaluate the substantive policy of particular pieces of legislation and decide whether the state interest was proportionally balanced to the deprivation of individual rights. In the first place, the grammatical structure of section 7 indicates that the “principles of fundamental justice” are adjectival—the rights (life, liberty and security of the person) are not to be taken away except in accordance with those principles. Thus, the principles place limits on how the rights are to be taken away, not whether or not as a policy matter they should be.

In addition, all the legislative history of section 7 indicates that it was not intended that the section should be the equivalent of substantive due process in the United States—it was not intended that the courts should exercise a broad policy-reviewing role with respect to all legislation. The capacity to act as the United States Supreme Court had done, in striking down the New Deal legislation in that country, was clearly not something which the drafters of the Charter wished to import.

When I review the cases which have found that a principle of fundamental justice has been infringed, I find situations which could be said to be analogous to, although not limited to, the rules of natural justice. In the Morgentaler decision the law was found to be invalid as being too vague. In other cases, provisions have been found to be invalid because mens rea was not required[11] or because the individual had no knowledge of the sanction imposed on him.[12] Others relate to the nature of admissible evidence.[13] These concerns are analogous to the principles of natural justice which require, for example, that a person must know the case against him or her before being disadvantaged by a decision and be given an adequate opportunity to answer.

In any event, most of the arguments which are made in this case for the purposes of section 7 are also repeated for the purposes of section 15. I prefer to deal with them within the latter.

(3)       Section 15

The section provides:

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.

It is argued that section 159 of the Criminal Code infringes that section on two grounds: (1) it discriminates on the basis of sexual orientation which is an analogous ground to those specifically listed in section 15, and (2) it discriminates on the basis of age because other comparable provisions of the Criminal Code relating to sexual activities stipulate the age of consent as 14.

I did not understand the respondent to suggest that sexual orientation was not an analogous ground. However, he argued that: (1) section 159 does not just proscribe anal intercourse as between males, it applies also to heterosexual as well as homosexual coupling; (2) not all male homosexual couples engage in this kind of sexual activity; and (3) while homosexuals may be an analogous group for section 15 purposes, section 159 does not directly address itself to sexual orientation. Counsel for the applicant, on the other hand, argues that the section has a disparate impact in so far as homosexual males are concerned and therefore discriminates against them. I do note that in the debates in the House of Commons, the antecedents to section 159 and section 159 itself are referred to as the “homosexual provisions.” I am persuaded, on the basis of the statistical evidence which has been filed that counsel for the applicant’s argument is correct.

In addition, as I understand the respondent’s argument, it is conceded that section 159 constitutes an infringement of section 15 on the ground of age. The respondent’s memorandum of fact and law acknowledges that section 159 draws a distinction based upon the enumerated ground of age and that this distinction is discriminatory: it imposes a burden upon a person under the age of 18 (who is neither husband nor wife), specifically, the risk of criminal prosecution in circumstances where such burden is not imposed upon a person 18 years of age or older.[14]

The jurisprudence is clear that once discrimination under section 15 has been found to exist, that discrimination must then be assessed in the light of section 1 of the Charter.[15] Section 1 provides:

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.

One turns then to consider whether the discrimination which is admitted to exist can meet the test of being “demonstrably justified in a free and democratic society.” The burden of proof is on the respondent. It must be shown that there is a legislative purpose of sufficient importance to warrant abrogating the constitutionally protected right not to be discriminated against and that the means chosen to achieve that objective are both reasonable and demonstrably justified.[16] Within this second analysis one must examine: (1) whether there is a rational connection between the objective and the means chosen to attain it; (2) whether the chosen means impair the rights as little as possible; and (3) whether there is a proportionality between the effects of the means and the legislative objectives.

The first step, then, is to identify the purpose or purposes of the provision in question. Counsel for the applicant, as noted, characterizes its purpose as being to discourage homosexual youths from acknowledging their sexual orientation. Counsel for the respondent, on the other hand, characterizes the purpose as being to protect youth from the increased risk of HIV transmission which arises from anal intercourse. Counsel agree that both the purpose and the effects of a legislative provision are relevant. Either can invalidate the legislation. This follows from the Supreme Court decision in Big M Drug Mart, where it was said: “effects can never be relied upon to save legislation with an invalid purpose.”[17] While Big M Drug Mart dealt with the identification of the purpose of legislative provisions in relation to paragraph 2(a) of the Charter (freedom of religion), I do not understand the process to be any different when an analysis under section 1 is being undertaken.

Both counsel also agree that the purpose must be assessed as of the date of the law’s enactment and that one cannot justify a provision by relying upon a purpose that the provision might have come to serve at a later time:[18] legislation which is invalid cannot be saved by a shifting purpose. One issue between the parties, in this case, the date as of which an examination of the purpose of the impugned provision should take place.

There can be little doubt that section 159 of the Criminal Code had its origins in the sodomy laws of the middle ages and earlier.[19] These were carried forward into the first codification of the Canadian criminal law in 1892 [The Criminal Code, 1892, S.C. 1892, c. 29],[20] where they remained for a long time thereafter. Significant reforms to the Criminal Code were enacted in 1969 [Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38]. These saw many types of sexual activity previously subject to criminal prosecution removed from the Code.[21] The aphorism most closely associated with those reforms is “the state has no business in the bedrooms of the nation.” The amendments made to the Code relevant for present purposes were clearly influenced by the Wolfenden Report.[22] The then Minister of Justice, Mr. Turner, in speaking to the proposed amendments in the House of Commons said:

These amendments remove certain sexual conduct between consenting adults in private from the purview of the criminal law. There is one point which I cannot emphasize too strongly in this regard. It is that parliament would not, in enacting these amendments, be condoning this type of conduct. Parliament by not imposing the criminal law upon fornication or adultery is not thereby condoning fornication or adultery. By having broadened the laws affecting divorce during the last parliament, parliament did not by that promote or condone divorce as a remedy worthy of emulation. Individuals will continue to be responsible to themselves for their moral behaviour.

I should like to place on the record a passage from the Wolfenden report dealing with this matter in the United Kingdom:

Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.[23] [Underlining added.]

A reading of the debates and the legislative history, including the Wolfenden Report, makes it clear that a distinction was made between the age of consent under what is now section 159 and the age of consent for other types of consensual sexual activity because (1) homosexual practices were considered immoral and (2) there was a concern that homosexuality was a learned behaviour or a disease such that de-criminalizing the activity in question could lead to youth being corrupted. The Code provisions were again amended in 1988 [An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24 (now R.S.C., 1985 (3rd Supp.), c. 19)] and the present section 159 came into existence at that time with the age of consent being reduced from 21 to 18 years.

I accept counsel for the respondent’s argument that whatever may have been the purpose of the provisions in earlier times, if that purpose changed with the 1988 amendment, or if a new and valid purpose became a foundation of the section, then, that new purpose can be relied upon as support for the section’s validity. Such would not be a shifting purpose as proscribed in Big M Drug Mart. The question, however, is whether such a new purpose did in fact become a foundation of the section.

Counsel for the respondent describes the purposes of section 159 as being three in number: (1) to reinforce moral precepts; (2) to inhibit homosexual youth from acknowledging their sexual orientation at an early age;[24] (3) to protect young persons from the increased risk of HIV transmission. I am not prepared to find that the first, by itself, is a purpose which can support making the activity in question a Criminal Code offence. I agree that there has always been a close connection between the criminal code and moral values. That does not mean, however, that today in our pluralistic society, that moral values alone can justify making an activity criminal. If it could one immediately has to ask “by whose moral values is the state to be guided”? I am not persuaded that in a free and democratic society that it is justifiable to make an activity criminal merely because a segment, indeed maybe a majority, of the citizency consider it to be immoral.

Counsel for the respondent concedes that the second purpose is invalid for constitutional purposes. That leaves for consideration whether the protection of the young from increased risk of HIV transmission is a purpose underlying section 159. Counsel for the applicant agrees that if it is, then, there is no doubt that that purpose has become more pressing and substantial than it was in 1988. He denies however that that was or is its purpose.

The argument that the prevention of HIV transmission is a purpose of section 159, in my view, simply does not stand up on an examination of the evidence. I accept that one looks for purpose in the legislative history of a section, including any reports on which it may have been based. These include in this case the Fraser Report[25] and the Badgley Report.[26] The purpose can be assessed by considering related provisions, that is, by reading the impugned provision in its legislative context, as well as by considering the debates and legislative committee proceedings relating thereto.

Prior to 1986, for obvious reasons, there was no mention of HIV transmission as being a purpose behind the precursors to section 159. When the Criminal Code amendments of 1988 were first introduced in the House of Commons in November 1986, there was no mention of this as a purpose, by the sponsoring Minister. Subsequently, in the House of Commons debate, Mr. Svend Robinson noted that it was strange that the age of consent in what is now section 159 was lowered from 21 to 18 when the Special Committee on Equality Rights had recommended “that there should be a uniform age of consent for homosexual and heterosexual activity.”[27] He argued that “If the Government wants to justify this form of discrimination, surely it will have to demonstrate to the committee that this conduct is more harmful than heterosexual conduct or other homosexual conduct in the same age group.”[28] Ms. Margaret Mitchell, Member of Parliament from Vancouver East (NDP), raised the same issue: “This Bill discriminates on the basis of sexual orientation. We believe there should be a consistent age of consent for both men and women.”[29]

The first occasion on which there was any mention of HIV transmission was after the Bill (Bill C-15) [An Act to amend the Criminal Code and the Canada Evidence Act, 2nd Sess., 33rd Parl.] had left the floor of the House and was before the relevant Committee. When the then Minister of Justice, Mr. Hnatyshyn, appeared as a witness before that Committee, Mr. Robinson again raised the question of why the age differential existed. Mr. Hnatyshyn responded by saying that medical evidence indicated that different kinds of psychological or physical harm might attach to different types of intercourse for young people, that medical experts were not certain at what age sexual preference was established and also “the question here is the heightened danger of contracting Acquired Immune Deficiency Syndrome or other sexually transmittal disease from anal intercourse.”[30]

Mr. Robinson pursued his questioning with other witnesses who appeared before that Committee. He asked Dr. Bala, a witness appearing as a representative of Canadian Council on Children and Youth, whether the provision could have a health purpose. Dr. Bala responded that if AIDS transmission was really the concern underlying what is now section 159, then, surely this would justify raising the age of consent, not lowering it to 18.[31] He also noted that if the protection of health underlay the section, then, logically the prohibition should apply to everyone, regardless of their age. In so far as exploitation of the young was concerned he pointed out that there were other provisions in the proposed legislation which dealt with that concern and that there was no need for a separate provision to deal with this particular activity.[32]

Mr. Robinson questioned Dr. Mian, Director of the Suspected Child Abuse and Neglect (SCAN) Program, Toronto Hospital for Sick Children. Her response was similar to that of Dr. Bala:

I really do not see there is any real difference between anal and vaginal intercourse in terms of psychological effects. There may be some difference with regards only to the issue of AIDS, and since there have been no reported cases in young people as a result of sexual activity, I think we are really not in a position to speak to that.[33]

The evidence of Ms. Grant, the Executive Director from the Metropolitan Toronto Special Committee on Child Abuse, was similar:[34]

… there is really no difference of rationale for noting any difference between vaginal and anal intercourse in terms of criminal sanctions.

A telling exchange occurred between Mr. Robinson and Mr. Thacker, acting Chairman of the Committee. The Committee like the House would of course be controlled by the Government members of which Mr. Thacker was one. Mr. Robinson asked what purpose the section could possibly serve:

What possible social good, Mr. Chairman, could be accomplished by subjecting a young person of 17 or 16 to a term of imprisonment of 10 years for engaging in a consensual sexual activity?[35]

Mr. Thacker responded:

It is just saying that is a consensual activity that society is not prepared to condone or promote. We are trying to discourage it. Nothing more than that is meant.[36]

I cannot conclude on the basis of the evidence that a purpose underlying the enactment of section 159, in 1987-1988, was to protect young persons from the increased risk of AIDS. The section has a long history as having been aimed at other purposes. There was no independent background report, such as the Badgley or Fraser reports, suggesting that a provision such as section 159 should be enacted to protect young people against the risk of AIDS. There was no mention of this in the House of Commons by the sponsoring Minister when Bill C-15 was introduced nor was there any mention when the Bill was reported back from the Committee for third reading.[37] Only after Mr. Robinson raised the discriminatory nature of the provision did the Minister of Justice, when he was before the Committee as a witness, refer to AIDS transmission as a possible justification. None of the independent witness which appeared before the Legislative Committee could support protection against the spread of AIDS as a valid object for the provision. The only witness to support this alleged purpose was a representative of the Minister’s Department[38] (not an objective independent witness). I have to conclude that the references by the Minister to AIDS transmission was an attempt to cobble together a pseudo-reason for not making the changes, after the potential discriminatory nature of the provision was pointed out by Mr. Robinson. Surely, a stronger foundation than this is needed to support the birth of a new purpose sufficient to render a legislative provision constitutionally valid. This is particularly so when the provision has had a long history of being based on an unconstitutional purpose.

What is more, if one considers whether or not the provision is rationally related to the objective which it is allegedly designed to achieve or whether its effects are proportional to that objective, the only conclusion that can be reached is that it is neither. All the evidence indicates that AIDS is spread by a number of activities (sharing needles among drug users, blood transfusions, both anal and vaginal intercourse). In absolute numbers it would appear that anal sex is the least frequent method of transmission. It is not rational to make one such activity a criminal offence and not the others. Also while unprotected anal sex may be riskier, as a potential conduit for HIV transmission than vaginal sex, in both cases it is unprotected sex which is the cause, not the activity itself. Lastly and perhaps most significantly, immediately prior to the 1988 enactment of section 159, Parliament had repealed the section of the Code which had made the transmission of sexually transmitted diseases a criminal offence.[39] This was in response to the Badgley and Fraser Reports which had recommended the repeal because the section was ineffective and, indeed, counterproductive.[40] It drove “underground” those who engaged in the activity which was the object of the provisions. It made it more difficult to obtain accurate reports of the incidents of disease. A much more effective way of dealing with the problem was through increased education. Accordingly, as noted, the provision of the Code which had made the transmission of sexually transmitted diseases an offence had been repealed at the very time that the respondent, now asserts, that section 159 was being enacted to protect young people from the spread of AIDS.

I cannot conclude that section 159 has a constitutionally valid purpose, or that the alleged purpose, in any event, can be rationally connected to the impugned provision, or that the effects of the provision are proportionate thereto.

By-Passing Extradition

Counsel’s argument is based on the comments of Mr. Justice La Forest in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at page 835:

It is, no doubt, true that extradition and deportation do not always have the same purpose, for cases can arise where they serve different ends, and fairness may demand that one procedure be used rather than the other. But that is not this case, and I would be concerned about encouraging a resort to deportation rather than extradition with its inbuilt protections geared to the criminal process. [Underlining added.]

The Kindler case dealt with the extradition of an individual to the United States where he faced the death penalty as a result of a murder conviction. Prior to the commencement of the extradition proceeding Kindler had been the subject of a deportation inquiry (see [Kindler v. MacDonald] [1987] 3 F.C. 34(C.A.)).

Counsel for the applicant argues that the previous jurisprudence in this area, e.g., Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839 must now be read in the light of the Supreme Court’s decision in Kindler and the Charter. Under the pre-Charter jurisprudence one had to demonstrate that a deportation proceeding was a sham—that the Minister did not genuinely consider it to be in the public interest that the individual be deported—before a challenge to the deportation order will succeed. It is argued that so stringent a test is no longer required—all that need be demonstrated is that it is unfair for the deportation process to be used instead of extradition.

Counsel notes that there was evidence that the arrest of the applicant, in Canada, was triggered by the bail bondspersons in the United States who wished the applicant returned to that country. He notes that there would appear to have been communication between the law enforcement officers in the United States and the Extradition Clerk of the Department of Justice, Criminal Prosecutions Section in Toronto. Law enforcement officers in the United States indicated that extradition proceedings were not being initiated because they had decided to await the Canadian deportation process. In addition, a conditional arrest warrant for extradition purposes has in fact been filed in case the applicant is unsuccessful in this proceeding. Counsel argues that this demonstrates a decision to proceed by deportation rather than extradition—a by-passing of extradition.

Counsel argues that the choice of deportation proceedings, rather that extradition, is unfair because there are guarantees under the latter which do not exist under the former. In the case of an extradition application, the Minister has a discretion to refuse to surrender the individual to the foreign state. An individual who is extradited may only be prosecuted or punished for the offences for which he is extradited (the rule of specialty). Counsel also argues that the test for an extraditable offence (double criminality)[41] is more favourable for the applicant that the equivalency test applied in deportation proceedings.

It is clear that extradition and deportation serve different purposes. Extradition is initiated by the requesting foreign state. In the absence of any such request a proceeding never begins. Deportation, on the other hand, is initiated by the expelling state, which does not wish the illegal alien to remain within its borders. I see nothing inherently unfair in a foreign state delaying extradition proceedings when it is known that the individual in question is likely to be deported in any event.

The comments of Mr. Justice La Forest in Kindler were directly related to the Federal Court of Appeal decision in Kindler v. MacDonald, [1987] 3 F.C. 34and the decision in Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 766 (H.C.); affd (1989), 70 O.R. (2d) 765 (C.A.). There was no indication by Mr. Justice La Forest that he thought that either of those decisions was wrongly decided. Whatever Mr. Justice La Forest may have meant by his statement [at page 835] that “cases can arise where … fairness may demand that one procedure be used rather than the other,” I do not think the statement has any applicability in this case. All of counsel’s arguments are directed at general characteristics of the extradition and deportation proceedings. There is no evidence of any particular unfairness which is likely to arise. In both Kindler (F.C.A.) and Shepherd, the validity of deportation proceedings were upheld. In both cases, there was substantial evidence that the United States authorities were awaiting the outcome of deportation proceedings rather than commencing an extradition application. The individuals in question were being deported as a result of a conviction for murder in one case and a charge of murder in the other. The aspects of extradition proceedings which are relied upon in this case (ministerial discretion, the rule of specialty and the principle of double criminality) were equally applicable in those cases. They are general characteristics of the extradition procedure. I have not been persuaded that the facts of this case differ in any way so as to take it out of the scope of application of those decisions. I am not persuaded that deportation, as opposed to extradition, is unfair to the applicant.

Conclusion and Certification of a Question

For the reasons given above the conditional deportation order made against the applicant on May 28, 1993, will be set aside.

At the hearing of this application no representations were made with respect to the certification of a question pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. I assume, however, that this is a case with respect to which counsel may wish to have appeal rights. Formal judgment will therefore not be entered until two weeks from the date of the release of these reasons to allow for submissions to be made on that point. Submissions may be made in writing or if counsel prefer by way of telephone conference. If agreement cannot be reached between counsel with respect to whether a question(s) should be certified and how that question(s) should be framed, and if the choice is made to proceed by way of written submissions, then, counsel for the respondent should file such submissions within the two-week period mentioned above. Counsel for the applicant will have one week thereafter within which to respond and the entering of the formal judgment will be correspondingly delayed for an additional week.

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