Age of Consent in Sexual Offences: Difference between revisions

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[[fr:Âge_du_consentement_aux_infractions_sexuelles]]
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* Persons aged 16 and above can consent as an adult.  
* Persons aged 16 and above can consent as an adult.  


{{quotation|
{{quotation2|
'''Consent no defence'''<br>
; Consent no defence
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
150.1 (1) Subject to subsections (2) to (2.2) {{AnnSec1|150.1(2) to (2.2)}}, when an accused is charged with an offence under section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}} or subsection 153(1) {{AnnSec1|153(1)}}, 160(3) {{AnnSec1|160(3)}} or 173(2) {{AnnSec1|173(2)}} or is charged with an offence under section 271 {{AnnSec2|271}}, 272 {{AnnSec2|272}} or 273 {{AnnSec2|273}} in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
<br>
<br>
'''Exception — complainant aged 12 or 13'''<br>
; Exception — complainant aged 12 or 13
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
(2) When an accused is charged with an offence under section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}}, subsection 173(2) {{AnnSec1|173(2)}} or section 271 {{AnnSec2|271}} in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
:(a) is less than two years older than the complainant; and
:(a) is less than two years older than the complainant; and
:(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
:(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.


'''Exception — complainant aged 14 or 15'''<br>
; Exception — complainant aged 14 or 15
(2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
(2.1) If an accused is charged with an offence under section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}}, subsection 173(2) {{AnnSec1|173(2)}} or section 271 {{AnnSec2|271}} in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused
:(a) is less than five years older than the complainant; and
:(a) is less than five years older than the complainant; and
:(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
:(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.


'''Exception for transitional purposes'''<br>
; Exception for transitional purposes
(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,
(2.2) When the accused referred to in subsection (2.1) {{AnnSec1|150.1(2.1)}} is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,
:(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and
:(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and
:(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
:(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.


'''Exception for transitional purposes'''<br>
; Exception for transitional purposes
(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.
(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) {{AnnSec1|150.1(2.1)}} is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.
<br>
<br>
'''Exemption for accused aged twelve or thirteen'''<br>
; Exemption for accused aged twelve or thirteen
(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}} or subsection 173(2) {{AnnSec1|173(2)}} unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
<br>
<br>
'''Mistake of age'''<br>
{{removed|(4), (5) and (6)}}
(4) ...
R.S., {{LegHistory80sL|1985, c. 19 (3rd Supp.)}}, s. 1;
<br>
{{LegHistory00sL|2005, c. 32}}, s. 2;
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; 2015, c. 29, s. 6.
{{LegHistory00sL|2008, c. 6}}, ss. 13, 54;  
|[http://canlii.ca/t/7vf2#sec150.1 CCC]
{{LegHistory10sL|2014, c. 25}}, s. 4;  
{{LegHistory10sL|2015, c. 29}}, s. 6;
{{LegHistory10sL|2019, c. 25}}, s. 51.
{{Annotation}}
|{{CCCSec2|150.1}}
|{{NoteUp|150.1|1|2|2.1|2.2|2.3|3}}
}}
}}


'''Consent Under the Age of 16'''<br>
; Purpose of s. 150.1
The purpose of s. 150.1 to remove consent as a defence to sexual assault against victims of a certain age is not only to prevent exploitation but also to prevent any sexual contact where there is an age-based power imbalance.<ref>
{{CanLIIR|AB|gm6vh|2015 ONCA 803 (CanLII)}}{{perONCA|Feldman JA}}{{atL|gm6vh|38}} ("Parliament’s intention is not simply to prevent sexual exploitation of children or even potential sexual exploitation of children, although those are certainly two of the law’s important effects. The purpose of the law, stated succinctly, is to protect children from sexual contact with adults or the invitation to have sexual contact by adults. The close-in-age exceptions reflect Parliament’s view that the inherent power imbalance between adults and children vitiates consensual sexual relations between them.")
</ref>
To that end, Parliament has drawn a "bright-line" on the age of consent.<Ref>
{{ibid1|AB}}{{atL||39}}
</ref>
 
; Consent Under the Age of 16
Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken.
Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken.
<ref>R v P. (L.T.), [http://canlii.ca/t/1wnvh 1997 CanLII 12464] (BC CA), (1997), 113 CCC (3d) 42 (BCCA)</ref>
<ref>
{{CanLIIRP|LTP|1wnvh|1997 CanLII 12464 |}}{{perBCCA|Finch JA}}</ref>


[[File:age of consent.jpg]]
[[File:age of consent.jpg]]


{{Reflist|2}}
{{Reflist|2}}
==All Reasonable Steps==
==All Reasonable Steps==
{{seealso|Due Diligence}}
{{seealso|Due Diligence}}
What constitutes "all reasonable steps" is highly context specific and will vary on the circumstances.<ref>
What constitutes "all reasonable steps" is highly context specific and will vary on the circumstances.<ref>
R v Duran, [http://canlii.ca/t/fxlfv 2013 ONCA 343] (CanLII), per Laskin JA. at para 52<Br>
{{CanLIIRP|Duran|fxlfv|2013 ONCA 343 (CanLII)|3 CR (7th) 274}}{{perONCA|Laskin JA}}{{atL|fxlfv|52}}<br>
R v Dragos, [http://canlii.ca/t/fs9ps 2012 ONCA 538] (CanLII), per Cronk JA, at para 32<br>
{{CanLIIRP|Dragos|fs9ps|2012 ONCA 538 (CanLII)|291 CCC (3d) 350}}{{perONCA|Cronk JA}}{{atL|fs9ps|32}}<br>
</ref>
</ref>


The requirement under 150.1(4) requiring that "all reasonable steps" be taken to ascertain age suggests an "inquiry akin to a due diligence inquiry", however, there is no onus upon the accused.<ref>
The requirement under 150.1(4) requiring that "all reasonable steps" be taken to ascertain age suggests an "inquiry akin to a due diligence inquiry", however, there is no onus upon the accused.<ref>
R v Saliba, [http://canlii.ca/t/g2gzc 2013 ONCA 661] (CanLII), at para 28
{{CanLIIRP|Saliba|g2gzc|2013 ONCA 661 (CanLII)|304 CCC (3d) 133}}{{perONCA-H|Doherty JA}}{{atL|g2gzc|28}}
</ref>
</ref>


{{quotation|
{{quotation2|
150.1<br>...<br>
150.1<br>
'''Mistake of age'''<br>
{{removed|(1), (2), (2.1), (2.2), (2.3) and (3)}}
(4) It is not a defence to a charge under section 151 [''[[Sexual Interference (Offence)|sexual interference]]''] or 152 [''[[Invitation to Sexual Touching (Offence)|invitation to sexual touching]]''], subsection 160(3) [''[[Bestiality (Offence)|Bestiality in presence of or by child]]''] or 173(2) [''Exposure to person under 16''], or section 271 [''[[Sexual Assault (Offence)|sexual assault]]''], 272 [''Sexual assault with a weapon, threats to a third party or causing bodily harm''] or 273 [''Aggravated sexual assault''] 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.
; Mistake of age
(4) It is not a defence to a charge under section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}}, subsection 160(3) {{AnnSec1|160(3)}} or 173(2) {{AnnSec1|173(2)}}, or section 271 {{AnnSec2|271}}, 272 {{AnnSec2|272}} or 273 {{AnnSec2|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.
<br>
<br>
'''Idem'''<br>
; Idem
(5) It is not a defence to a charge under section 153 [''Sexual exploitation''], 159 [''Anal intercourse''], 170 [''Parent or guardian procuring sexual activity''], 171 [''Householder permitting prohibited sexual activity''] or 172 [''Corrupting children''] or subsection 286.1(2) [''Obtaining sexual services for consideration from person under 18 years''], 286.2(2) [''Material benefit from sexual services provided by person under 18 years''] or 286.3(2) [''Procuring — person under 18 years''] 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.
(5) It is not a defence to a charge under section 153 {{AnnSec1|153}}, 159 {{AnnSec1|159}}, 170 {{AnnSec1|170}}, 171 {{AnnSec1|170}} or 172 {{AnnSec1|172}} or subsection 286.1(2) {{AnnSec2|286.1(2)}}, 286.2(2) {{AnnSec2|286.2(2)}} or 286.3(2) {{AnnSec2|286.3(2)}} that the accused believed that the complainant was 18 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.
<br>
<br>
'''Mistake of age'''<br>
; 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.
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) {{AnnSec1|150.1(2)}} or (2.1) {{AnnSec1|150.1(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; 2015, c. 29, s. 6.
 
|[http://canlii.ca/t/7vf2#sec150.1 CCC]
R.S., {{LegHistory80sL|1985, c. 19 (3rd Supp.)}}, s. 1;
{{LegHistory00sL|2005, c. 32}}, s. 2;
{{LegHistory00sL|2008, c. 6}}, ss. 13, 54;  
{{LegHistory10sL|2014, c. 25}}, s. 4;  
{{LegHistory10sL|2015, c. 29}}, s. 6;
{{LegHistory10sL|2019, c. 25}}, s. 51.
{{Annotation}}
|{{CCCSec2|150.1}}
|{{NoteUp|150.1|4|5|6}}
}}
}}


Section 150.1(4) is only available where:<Ref>R v Gashikanyi, [http://canlii.ca/t/gftqq 2015 ABCA 1] (CanLII), at para 14<br>
Section 150.1(4) is only available where:<ref>
{{CanLIIRP|Gashikanyi|gftqq|2015 ABCA 1 (CanLII)|16 CR (7th) 369}}{{TheCourtABCA}}{{atL|gftqq|14}}<br>
</ref>
</ref>
# the accused had "an honest belief that the complainant was 16 years of age or older; and  
# the accused had "an honest belief that the complainant was 16 years of age or older; and  
Line 94: Line 121:


An inquiry should be made into whether a reasonable person would have taken the steps taken by the accused to ascertain age.<ref>
An inquiry should be made into whether a reasonable person would have taken the steps taken by the accused to ascertain age.<ref>
Saliba{{supra}} at para 28</ref>
{{supra1|Saliba}}{{atL|g2gzc|28}}</ref>


'''Burden'''<br>
; Burden
The onus is on the Crown to prove beyond a reasonable doubt that the steps were insufficient.<ref>
The onus is on the Crown to prove beyond a reasonable doubt that the steps were insufficient.<ref>
Saliba{{supra}} at para 28<br>
{{supra1|Saliba}}{{atL|g2gzc|28}}<br>
R v Duran, [http://canlii.ca/t/fxlfv 2013 ONCA 343] (CanLII) at para 54<br>
{{CanLIIRP|Duran|fxlfv|2013 ONCA 343 (CanLII)|3 CR (7th) 274}}{{perONCA|Laskin JA}}{{atL|fxlfv|54}}<br>
</ref>
</ref>
There is no burden on the accused.<Ref>
There is no burden on the accused.<ref>
Saliba{{supra}} at para 28<br>
{{supra1|Saliba}}{{atL|g2gzc|28}}<br>
</ref>
</ref>


'''Interpretation'''<br>
; Interpretation
"All reasonable steps" requires at a minimum, an "earnest inquiry or something that obviates the need for such an inquiry".<ref>
"All reasonable steps" requires at a minimum, an "earnest inquiry or something that obviates the need for such an inquiry."<ref>
Gashikanyi{{supra}} at para 14<Br>
{{supra1|Gashikanyi}}{{atL|gftqq|14}}<br>
</ref>
</ref>


The requirement for all reasonable steps is more than a "casual" one.<Ref>
The requirement for all reasonable steps is more than a "casual" one.<ref>
R v Mastel, [http://canlii.ca/t/2fs5c 2011 SKCA 16] (CanLII) at para 21<br>
{{CanLIIRP|Mastel|2fs5c|2011 SKCA 16 (CanLII)|268 CCC (3d) 224}}{{perSKCA|Lane JA}}{{atL|2fs5c|21}}<br>
R v Osborne (1992), [http://canlii.ca/t/fsxrt 1992 CanLII 7117] (NL CA) at para 62<br>
{{CanLIIRP|Osborne|fsxrt|1992 CanLII 7117 (NL CA)|17 CR (4th) 350}}{{perNLCA|Goodridge CJ}}{{atL|fsxrt|62}}<br>
R v George, [http://canlii.ca/t/gvx5z 2016 SKCA 155] (CanLII) at para 29<Br>
{{CanLIIRP|George|gvx5z|2016 SKCA 155 (CanLII)|344 CCC (3d) 543}}{{perSKCA|Richards CJ}}{{atL|gvx5z|29}}<br>
</ref>
</ref>


Only information that is known to the accused ''in advance of the encounter at issue'' should be considered in the analysis.<ref>
Only information that is known to the accused ''in advance of the encounter at issue'' should be considered in the analysis.<ref>
R v Clarke, [http://canlii.ca/t/gsbx2 2016 SKCA 80] (CanLII), 338 CCC (3d) 83 at para 75<Br>
{{CanLIIRP|Clarke|gsbx2|2016 SKCA 80 (CanLII)|338 CCC (3d) 83}}{{TheCourt}}{{atL|gsbx2|75}}<br>
George{{supra}} at para 33<br>
{{supra1|George}}{{atL|gvx5z|33}}<br>
</ref>
</ref>


It is recognized that people online regularly misrepresent themselves online, including age. This creates "all the more reason" to take additional steps to ascertain the real age of the person they are communicating with.<ref>
It is recognized that people online regularly misrepresent themselves online, including age. This creates "all the more reason" to take additional steps to ascertain the real age of the person they are communicating with.<ref>
R v Rayo, 2017 QCCQ 128 (CanLII)<Br>
{{CanLIIRx|Rayo|gx2l3|2017 QCCQ 128 (CanLII)}}{{perQCCQ|Vanchestein J}}<br>
R v Beckford, 2016 ONSC 1066 (CanLII)<br>
{{CanLIIRx|Beckford|gnd2l|2016 ONSC 1066 (CanLII)}}{{perONSC|Goldstein J}}<br>
R v Froese, 2016 ONSC 1075 (CanLII)<Br>
{{CanLIIRP|Clarke|gsbx2|2016 SKCA 80 (CanLII)|338 CCC (3d) 83}}{{TheCourtSKCA}}<br>
R v Clarke, 2016 SKCA 80 (CanLII)<br>
{{CanLIIRx|ZID|gl19q|2012 BCPC 570 (CanLII)}}{{perBCPC|Bayliff J}}<br>
R v ZID, 2012 BCPC 570 (CanLII)<br>
</ref>
</ref>


'''Asking Complainant's Age'''<Br>
; Asking Complainant's Age
It is not necessarily fatal to a defence for the accused to fail to ask the complainant of her age.<ref>
It is not necessarily fatal to a defence for the accused to fail to ask the complainant of her age.<ref>
Gashikanyi{{supra}} at para 17<br>
{{supra1|Gashikanyi}}{{atL|gftqq|17}}<br>
George{{supra}} at para 30<Br>
{{supra1|George}}{{atL|gvx5z|30}}<br>
R v RAK, [http://canlii.ca/t/1p52b 1996 CanLII 7277] (NB CA), 175 NBR (2d) 225, 106 CCC (3d) 93 at 96<br>
{{CanLIIRP|RAK|1p52b|1996 CanLII 7277 (NB CA)|175 NBR (2d) 225, 106 CCC (3d) 93}}{{perNBCA|Hoyt CJ}} (3:0) at 96<br>
</ref> But it is a "relevant to the inquiry as to whether or not all reasonable steps have been taken".<ref>
</ref>  
Gashikanyi{{supra}} at para 17<br>
But it is a "relevant to the inquiry as to whether or not all reasonable steps have been taken."<ref>
{{supra1|Gashikanyi}}{{atL|gftqq|17}}<br>
</ref>
</ref>


Line 141: Line 168:
===Indicia of Reasonable Steps===
===Indicia of Reasonable Steps===
Certain factors to consider include:<ref>
Certain factors to consider include:<ref>
R v Slater, [http://canlii.ca/t/1l3jz 2005 SKCA 87] (CanLII) at para 29<Br>
{{CanLIIRP|Slater|1l3jz|2005 SKCA 87 (CanLII)|201 CCC (3d) 85}}{{perSKCA|Jackson JA}} (3:0) {{atL|1l3jz|29}}<br>
R v LTP (1997), [http://canlii.ca/t/1wnvh 1997 CanLII 12464] (BC CA), 113 CCC (3d) 42 (BCCA) at para 20<Br>
{{CanLIIRP|LTP|1wnvh|1997 CanLII 12464 (BC CA)|113 CCC (3d) 42}}{{perBCCA|Finch JA}} (3:0) {{atL|1wnvh|20}}<br>
George{{supra}} at para 31<Br>
{{CanLIIRP|George|gvx5z|2016 SKCA 155 (CanLII)|344 CCC (3d) 543}}{{perSKCA|Richards CJ}}{{atL|gvx5zt|31}}<br>
</ref>
</ref>
# the complainant’s physical appearance;  
# the complainant’s physical appearance;  

Latest revision as of 14:19, 14 July 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 95208)

General Principles

See also: Consent in Sexual Offences and Sexual Assault (Offence)

The lawfulness of sexual acts between persons will often depend on the presence of proper consent. The law deems persons of certain age unable to consent. What age applies will vary in some circumstances on the age of the adult participant.

Section 150.1 sets out the rules regarding the age of consent as it relates to sexual act and the criminalization of these acts. The statutory exemptions to criminal sexual acts found under s. 150.1 apply to certain situations that would otherwise make out one or more of the follow sex offences:

The key rules are essentially as follows:

  • Persons who are 12 or 13 can consent to sex with persons no more than two years their elder and not in a position of trust (s. 150.1(2))
  • Persons who are 14 or 15 can consent to sex with persons no more than five years their elder and not in a position of trust. Or they can consent if married. (s. 150.1(2.1))
  • Persons aged 16 and above can consent as an adult.
Consent no defence

150.1 (1) Subject to subsections (2) to (2.2) , when an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching] or subsection 153(1) [sexual exploitation], 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or is charged with an offence under section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exception — complainant aged 12 or 13

(2) When an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 173(2) [exposure to person under 16] or section 271 [sexual assault] in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 173(2) [exposure to person under 16] or section 271 [sexual assault] in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception for transitional purposes

(2.2) When the accused referred to in subsection (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and
(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception for transitional purposes

(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exemption for accused aged twelve or thirteen

(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 [sexual interference] or 152 [invitation to sexual touching] or subsection 173(2) [exposure to person under 16] unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
[omitted (4), (5) and (6)]
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; 2015, c. 29, s. 6; 2019, c. 25, s. 51.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 150.1(1), (2), (2.1), (2.2), (2.3), and (3)

Purpose of s. 150.1

The purpose of s. 150.1 to remove consent as a defence to sexual assault against victims of a certain age is not only to prevent exploitation but also to prevent any sexual contact where there is an age-based power imbalance.[1] To that end, Parliament has drawn a "bright-line" on the age of consent.[2]

Consent Under the Age of 16

Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken. [3]

  1. ↑ R v AB, 2015 ONCA 803 (CanLII), per Feldman JA, at para 38 ("Parliament’s intention is not simply to prevent sexual exploitation of children or even potential sexual exploitation of children, although those are certainly two of the law’s important effects. The purpose of the law, stated succinctly, is to protect children from sexual contact with adults or the invitation to have sexual contact by adults. The close-in-age exceptions reflect Parliament’s view that the inherent power imbalance between adults and children vitiates consensual sexual relations between them.")
  2. ↑ AB, ibid., at para 39
  3. ↑ R v LTP, 1997 CanLII 12464 , per Finch JA

All Reasonable Steps

See also: Due Diligence

What constitutes "all reasonable steps" is highly context specific and will vary on the circumstances.[1]

The requirement under 150.1(4) requiring that "all reasonable steps" be taken to ascertain age suggests an "inquiry akin to a due diligence inquiry", however, there is no onus upon the accused.[2]

150.1
[omitted (1), (2), (2.1), (2.2), (2.3) and (3)]

Mistake of age

(4) It is not a defence to a charge under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16], or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] 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 [sexual exploitation], 159 [anal intercourse], 170 [parent or guardian procuring sexual activity], 171 [parent or guardian procuring sexual activity] or 172 [corrupting children] or subsection 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18] that the accused believed that the complainant was 18 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) [consent in sexual offences – exception for complainant aged 12 or 13] or (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] 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; 2015, c. 29, s. 6; 2019, c. 25, s. 51.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 150.1(4), (5) and (6)

Section 150.1(4) is only available where:[3]

  1. the accused had "an honest belief that the complainant was 16 years of age or older; and
  2. he "took all reasonable steps to ascertain the age of the complainant".

An inquiry should be made into whether a reasonable person would have taken the steps taken by the accused to ascertain age.[4]

Burden

The onus is on the Crown to prove beyond a reasonable doubt that the steps were insufficient.[5] There is no burden on the accused.[6]

Interpretation

"All reasonable steps" requires at a minimum, an "earnest inquiry or something that obviates the need for such an inquiry."[7]

The requirement for all reasonable steps is more than a "casual" one.[8]

Only information that is known to the accused in advance of the encounter at issue should be considered in the analysis.[9]

It is recognized that people online regularly misrepresent themselves online, including age. This creates "all the more reason" to take additional steps to ascertain the real age of the person they are communicating with.[10]

Asking Complainant's Age

It is not necessarily fatal to a defence for the accused to fail to ask the complainant of her age.[11] But it is a "relevant to the inquiry as to whether or not all reasonable steps have been taken."[12]

  1. ↑ R v Duran, 2013 ONCA 343 (CanLII), 3 CR (7th) 274, per Laskin JA, at para 52
    R v Dragos, 2012 ONCA 538 (CanLII), 291 CCC (3d) 350, per Cronk JA, at para 32
  2. ↑ R v Saliba, 2013 ONCA 661 (CanLII), 304 CCC (3d) 133, per Doherty JA, at para 28
  3. ↑ R v Gashikanyi, 2015 ABCA 1 (CanLII), 16 CR (7th) 369, per curiam, at para 14
  4. ↑ Saliba, supra, at para 28
  5. ↑ Saliba, supra, at para 28
    R v Duran, 2013 ONCA 343 (CanLII), 3 CR (7th) 274, per Laskin JA, at para 54
  6. ↑ Saliba, supra, at para 28
  7. ↑ Gashikanyi, supra, at para 14
  8. ↑ R v Mastel, 2011 SKCA 16 (CanLII), 268 CCC (3d) 224, per Lane JA, at para 21
    R v Osborne, 1992 CanLII 7117 (NL CA), 17 CR (4th) 350, per Goodridge CJ, at para 62
    R v George, 2016 SKCA 155 (CanLII), 344 CCC (3d) 543, per Richards CJ, at para 29
  9. ↑ R v Clarke, 2016 SKCA 80 (CanLII), 338 CCC (3d) 83, per curiam, at para 75
    George, supra, at para 33
  10. ↑ R v Rayo, 2017 QCCQ 128 (CanLII), per Vanchestein J
    R v Beckford, 2016 ONSC 1066 (CanLII), per Goldstein J
    R v Clarke, 2016 SKCA 80 (CanLII), 338 CCC (3d) 83, per curiam
    R v ZID, 2012 BCPC 570 (CanLII), per Bayliff J
  11. ↑ Gashikanyi, supra, at para 17
    George, supra, at para 30
    R v RAK, 1996 CanLII 7277 (NB CA), 175 NBR (2d) 225, 106 CCC (3d) 93, per Hoyt CJ (3:0) at 96
  12. ↑ Gashikanyi, supra, at para 17

Indicia of Reasonable Steps

Certain factors to consider include:[1]

  1. the complainant’s physical appearance;
  2. the complainant’s behaviour;
  3. the ages and appearances of others in whose company the complainant is found;
  4. the activities in which the complainant was engaged; and
  5. the times, places and other circumstances in which the accused observed the complainant and the complainant’s conduct.
  1. ↑ R v Slater, 2005 SKCA 87 (CanLII), 201 CCC (3d) 85, per Jackson JA (3:0) , at para 29
    R v LTP, 1997 CanLII 12464 (BC CA), 113 CCC (3d) 42, per Finch JA (3:0) , at para 20
    R v George, 2016 SKCA 155 (CanLII), 344 CCC (3d) 543, per Richards CJ, at para 31
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