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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Equality rights - Legal rights

Thursday, March 08, 2018 @ 8:41 AM  

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Application by the defendant De Sousa challenging the constitutionality of the criminal prosecution. De Sousa was charged with distributing child pornography. For the purposes of the application, it was accepted that De Sousa had the mental characteristics and capacities of a child of 12 because of significant developmental delay. The defence submitted that because of his mental age, De Sousa ought to be given the benefit of s. 13 of the Criminal Code, which stipulated that no person should be convicted of an offence in respect of an act or omission on his part while that person was under the age of 12 years. A strict reading of that section was that it was based exclusively on chronological age and did not apply to any person over the age of 12. The defence argued that the strict reading violated De Sousa’s ss. 7 and 15 Charter rights as it created a distinction based on mental capacity that penalized persons with mental disabilities, thereby widening the gap between a historically disadvantaged group and the rest of society.

HELD: Application dismissed. Parliament clearly expressed the test for criminal accountability in terms of chronological age and there was no basis upon which the Court could import a test based on mental capacity. De Sousa was excluded from the protection afforded by s. 13 of the Criminal Code because he was older than 12, not because he had a mental disability. He was in no different a position than the many children aged 13 or 14 who were virtually indistinguishable from a 12-year-old in terms of physical, mental, cognitive, moral, or emotional development. De Sousa’s ss. 7 and 15 Charter rights were not engaged or infringed by the strict reading of s. 13 of the Criminal Code.

R. v. De Sousa, [2018] O.J. No. 514, Ontario Court of Justice, M.G. McLeod J., January 31, 2018. Digest No. TLD-Mar52018007