R. v. Poirier, (1985) 69 N.B.R.(2d) 1 (PC)

• Judge: McNamee, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: November 25, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 69 N.B.R.(2d) 1 (PC)

R. v. Poirier (1985), 69 N.B.R.(2d) 1 (PC);

    69 R.N.-B.(2e) 1; 177 A.P.R. 1

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R. v. Poirier

Indexed As: R. v. Poirier

Répertorié: R. v. Poirier

New Brunswick Provincial Court

McNamee, P.C.J.

November 25, 1985.

Summary:

Résumé:

The accused was charged with having sexual intercourse with female person who was not his wife and who was of previously chaste character, under the age of 16 and over the age of 14 years, contrary to s. 146(2) of the Criminal Code of Canada. The accused alleged that the charge was null and void on the ground that it offended s. 15(1) of the Canadian Charter of Rights and Freedoms.

The New Brunswick Provincial Court agreed and discharged the accused.

Civil Rights - Topic 5502

Equality and protection of the law - Right to equality - Whether abridged - The New Brunswick Provincial Court held that s. 146(2) of the Criminal Code of Canada, having sexual intercourse with a female person not his wife and of previously chaste character who was under the age of 16 and over the age of 14, discriminated against males contrary to s. 15 of the Charter - The court held that s. 146(2) could not be justified as a reasonable limitation under s. 1 of the Charter.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The New Brunswick Provincial Court held that s. 146(2) of the Criminal Code of Canada discriminated against males contrary to s. 15 of the Charter and was not a reasonable limitation under s. 1.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - The New Brunswick Provincial Court held that a Provincial Court judge conducting a preliminary inquiry is a "court of competent jurisdiction" under s. 24 of the Charter to declare a charge null and void on the ground that it is contrary to s. 15 of the Charter - See paragraphs 3 to 8.

Criminal Law - Topic 698

Sexual offences - Sexual intercourse with a female aged 14 and 15 - The New Brunswick Provincial Court held that s. 146(2) of the Criminal Code of Canada, the offence of having sexual intercourse with a female person not his wife and of previously chaste character who was under the age of 16 and over the age of 14, discriminated against males contrary to s. 15 of the Charter - The court held that s. 146(2) could not be justified as a reasonable limitation under s. 1 of the Charter.

Cases Noticed:

Re R and Hislop (1983), 36 C.R.(3d) 29 (Ont. C.A.), refd to. [para. 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 146(1) [paras. 17-20]; sect. 146(2) [paras. 12-13, 16, 20, 24]; sect. 146(3) [para. 21].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 15]; sect. 15 [para. 7]; sect. 24 [para. 3].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 3(1) [para. 11]; sect. 26(6) [paras. 11-12].

Counsel:

Paul Hawkins, for the Crown;

James Whelly, for the accused.

This application was heard before McNamee, P.C.J., of the New Brunswick Provincial Court at Saint John, N.B., on November 25, 1985. The decision of McNamee, P.C.J., was delivered on November 25, 1985.