If an accused person is charged with certain Criminal Code sexual offences (such as an offence pursuant to section 151 (sexual interference) or section 271(1) (sexual assault)) involving a complainant under the age of sixteen, “it is not a defence that the complainant consented to the activity that forms the subject matter of the charge.”
See section 150.1(1) of the Criminal Code.
It is, however, a defence if the accused honestly believed that the complainant was sixteen years of age or older at the time the sexual activity occurred (the “mistake of age defence”). But, the mistake of age defence is subject to section 150.1(4) of the Criminal Code, which indicates that it is not defence that the accused person “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.”
The accused must point to some evidence that he or she honestly believed the complainant was 16 years or more and that he or she took all reasonable steps to ascertain the complainant’s age. If the accused meets this evidentiary burden, the Crown is required to prove beyond a reasonable doubt that the accused did not have the requisite belief or that he or she failed to take all reasonable steps to ascertain the complainant’s age.
R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42 (B.C.C.A.), at paras. 16-19; R. v. Osborne (1992), 1992 CanLII 7117 (NL CA), 102 Nfld. & P.E.I.R. 194 (Nfld. C.A.), at paras. 47-49 and 61.
Reasonable steps There is no automatic checklist of considerations applicable to every case, that what constitutes all reasonable steps depends on the context and the circumstances,
R. v. Duran, 2013 ONCA 343 (CanLII), 306 O.A.C. 301, at para. 54.
Sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the information the complainant told the appellant about herself, including any information about her age; the accused’s knowledge of the complainant’s physical appearance and behaviour; the age differential between the appellant and the complainant; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because an accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently.
R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42 (B.C.C.A.) at para 20; R. v. Duran, 2013 ONCA 343 (CanLII), 306 O.A.C. 301.