Mistaken Belief of Age

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General Principles

An accused can only be found guilty of a sex offence under s. 151, 152, 160, 172.1, 173, 271, 272 or 273 which involves a minor where the accused had an honest belief the complainant was of an age of consent. The crown as part of its case should prove beyond a reasonable doubt that the accused failed to take sufficient steps in all the circumstances to ascertain the complainant's age.

The standard to determine the sufficiency of the steps varies depending on the offence. Offences relying on s. 150.1 require the accused take "all reasonable steps", while offences under s. 172.1(4) require "reasonable steps".

s. 172.1...
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14.


CCC

150.1 ...
Mistake of age
(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Idem
(5) It is not a defence to a charge under section 153, 159, 170, 171 or 172 or subsection 286.1(2), 286.2(2) or 286.3(2) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Mistake of age
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4.


CCC

Reasonable Steps or All Reasonable Steps

"Reasonable steps" must be assessed in context and will turn on the specific circumstances of the case.[1] Both reasonable steps and "all reasonable steps" must be assessed on the basis of an objective and reasonable person.[2]

Under s. 150.1, "all reasonable steps" is a "due diligence defence".[3] The test is whether the steps ones that “a reasonable person would take in the circumstances” to ascertain a complainant’s age.[4]

Factors to consider include:[5]

  1. knowledge of the complainant
  2. physical appearance
  3. age and appearance of the complainant's associates
  4. age differential between the accused and the complainant
  5. demeanour of the complainant
  6. the time and location of the alleged sexual assault
  7. any other relevant times or places

It is generally understood that less familiar the parties are the more steps that are required to confirm there is consent to sexual activity.[6]

The bigger the age difference between the parties the greater the expectation that the accused would make more inquiries.[7] This can mean that a simple visual observation is insufficient.[8]

Where the accused became aware that information source relating to age may have been inaccurate in the past may affect the was reasonable steps are necessary.[9]

  1. R v Thain, 2009 ONCA 223 (CanLII), [2009] O.J. No. 1022, at para 43
  2. Thain at para 46, 47
  3. R v Hess; R v Nguyen, 1990 CanLII 89 (SCC), [1990] 2 SCR 906
  4. R v Dragos, 2012 ONCA 538 (CanLII)
    R v L.T.P. 1997 CanLII 12464 (BC CA), (1997), 113 CCC (3d) 42, at para 20. See also R v Hayes, [1991] A.J. No. 1232 (Alta. Q.B.)(*no link)
  5. R v K.(R.A.) 1996 CanLII 7277 (NB CA), (1996), 106 CCC (3d) 93 (N.B.C.A.)
    R v L.T.P.
  6. R v Dippel, 2011 ABCA 129 (CanLII)
    R v Crangle, 2010 ONCA 451 (CanLII), 77 C.R. (6th) 98, 256 CCC (3d) 234, leave to appeal refused 416 N.R. 390 (note) (S.C.C.)
    R v S. (T.), 1999 CarswellOnt 245 (Ont. Gen. Div.)(*no link) at para 158 ("A sexual encounter between persons with no history of sexual experience together...as a matter of logic and common sense, requires clear and unambiguous communication of consent, not self‑serving interpretations of equivocal or contradictory behavior.")
  7. R v K. (R. A.) 1996 CanLII 7277 (NB CA), (1996), 106 CCC (3d) 93 (N.B.C.A.)
  8. R v M.G.B, 2005 ABPC 215 (CanLII), [2005] A.J. No. 1081
  9. R v Saliba, 2013 ONCA 661 (CanLII)