R. v. HASON, 2024 ONCA 369, MAY 7, 2024.
FACTS: The accused was convicted of the offence of sexual assault in relation to a fifteen year-old child. At his trial, the accused argued that he believed the victim was seventeen years of age. In convicting the accused, the trial judge concluded that the accused had not taken reasonable steps to ascertain the victim’s age.
The accused appealed from conviction.
HELD: The appeal from conviction was dismissed. The Ontario Court of Appeal concluded that the trial judge “properly convicted the appellant because he found that the appellant did not reasonably mistake the complainant’s age but instead recklessly initiated sexual activity with the complainant, despite his awareness that she could be underage” (at paragraph 32).
In reaching this conclusion the Court of Appeal noted that section 150.1(4) of the Criminal Code “modifies the mistake of age defence by requiring the accused to take all reasonable steps to ascertain the complainant’s age. The modified defence has two elements: (1) the accused honestly believed that the complainant was at least 16 years old at the time of the alleged offence, and (2) the accused took all reasonable steps to ascertain the complainant’s age. If the accused shows an air of reality to both elements, then the Crown must negate the defence by proving beyond a reasonable doubt that either element is lacking” (at paragraph 35).
The Court of Appeal indicated that “[d]isproving the first element, honest belief, requires the Crown to prove that the accused did not subjectively accept as true that the complainant was of legal age. Because to believe something is to subjectively accept it as true, belief requires a higher degree of certainty than suspicion or supposition…A person who suspects, guesses, or hopes that the complainant is 16 or older does not accept that proposition as true but instead recognizes that there is a risk, even a low one, that the complainant may be underage. Proceeding with sexual activity despite being aware of that risk is the blameworthy mental state of recklessness, not belief” (at paragraph 36).
As regards the second element, the Court stated that this element “makes adults responsible for preventing adult/youth sexual activity…Adults must take all reasonable steps to ascertain the complainant’s age before engaging in sexual activity. Parliament’s choice of the word “all” means what it says: Adults must take all reasonable steps, not merely some” (at paragraphs 38 and 39).
The Court of Appeal “identified several common scenarios where the accused must take additional steps to ascertain age” (at paragraph 43):
• If complainants tell the accused that they are underage: Morrison, at para. 107;
• If the complainant either declines to respond to the accused’s inquiries concerning age or provides an ambiguous response: Morrison, at para. 107;
• If the information the accused obtains merely suggests that the complainant could be 16 or older but does not establish this with the high degree of certainty that belief requires: R. v. Gashikanyi, 2015 ABCA 1, 16 C.R. (7th) 369, at para. 17; see also Isabel Grant & Janine Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019) 97 Can. Bar. Rev. 1, at pp. 6, 29; and,
• If the accused initially obtains compelling information that the complainant is 16 or older but subsequently learns other information suggesting that the complainant is underage: Morrison, at para. 108.
The Court pointed out that “[b]ecause stereotypes and illogical reasoning are impermissible, a reasonable person would also be very wary of relying on the mere fact(s) that complainants are drinking, smoking, purchasing or using drugs, and/or are sexually active to infer that they are of legal age…Rather, the reasonable person would recognize that many underage young people engage in these activities” (at paragraph 45).
Finally, the Court of Appeal indicated that “[n]egating the mistake of age defence is necessary but not sufficient to convict the accused. The Crown must also prove that the accused had one of three blameworthy mental states: (1) belief, (2) wilful blindness, or (3) recklessness: Carbone, at paras. 120-124. First, belief means that the accused accepted as true that the complainant was underage. Second, wilful blindness means that the accused suspected that the complainant might be underage but deliberately suppressed that suspicion and chose not to make further inquiries: Morrison, at para. 98. Third, recklessness means that the accused appreciated a risk, even a low one, that the complainant might be underage and decided to take it. This includes situations where accused persons chose to never turn their minds to the complainant’s age and, thus, chose to run the risk that the complainant might be underage” (at paragraph 48).
