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Criminal - Child Sex Offences. R. v. West
In R. v. West (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal against convictions of "one count of possession of child pornography and one count of internet luring."
Here the court considers the mens rea of recklessness wrt the age of the sex offence complainant:[3] With respect to the child luring count, although the appellant does not concede the issue, he accepts that this court’s decision in R. v. Fox, 2023 ONCA 674, determines the mens rea issue adversely to his position. In Fox, this court held that as a matter of statutory interpretation, recklessness as to age can satisfy the mens rea for internet luring under s. 172.1(1)(a) of the Criminal Code in cases where an actual child under age 18 is involved.
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[12] Although in her ultimate conclusion, the trial judge described her finding as knowledge or a failure to take reasonable steps, reading her reasons as a whole, we are satisfied that the trial judge found that the appellant was either subjectively aware that the complainant was under 18, or at least knew there was a need for further inquiry about her age and deliberately chose not to inquire. In the circumstances here, the latter finding amounted to a finding that the appellant was wilfully blind about the complainant’s age, which is the legal equivalent of actual knowledge: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at pp. 584-86; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21-24. .... . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal explores the 'mistake of age defence' and the several mens rea that can apply to child sex offences:(a) The Governing Principles for the Mistake of Age Defence and the Blameworthy Mental State Requirement
[33] Parliament prohibits adults from engaging in sexual activity with young people under the age of 16 to protect those young people from exploitation by adults and the wrongfulness and harmfulness of adult/youth sexual activity: Criminal Code, s. 150.1(1); R. v. A.B., 2015 ONCA 803, 342 O.A.C. 36, at paras. 37-39, 45.[3] Adults who violate this prohibition may be prosecuted for committing sexual assault and/or sexual interference: Criminal Code, ss. 151, 271. Such adults sometimes claim that they believed that the underage young person was 16 or older. Absent legislative intervention, judge-made law would permit this mistake of age defence if the adult honestly held that belief, even if it was unreasonable: Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, at p. 156, per Dickson J. (dissenting, but not on this point); R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at paras. 7-8.
[34] The mistake of age defence presented Parliament with a dilemma. Permitting it to operate unrestricted would allow adults who failed to make reasonable inquiries and held unreasonable beliefs about a young person’s age to evade conviction, but eliminating it would likely violate the Charter: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 109-111; Isabel Grant, “The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence” (2021) 44 Man. L.J. 1, at pp. 7-8.
[35] Parliament resolved this dilemma and enhanced protections for young people by enacting section 150.1(4) of the Criminal Code: George, at paras. 7-8; Carbone, at paras. 111-113. That provision 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: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 54-57, leave to appeal refused, [2021] S.C.C.A. No. 381.
[36] Disproving 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: Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149, at para. 55. 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: Carbone, at para. 125.
[37] Disproving the honest belief element knocks out the entire mistake of age defence. It is irrelevant that the accused took all reasonable steps to ascertain age or that a reasonable person might have believed the complainant was 16 or older if the accused did not also subjectively believe this: R. v. Moise, 2016 SKCA 133, 343 C.C.C. (3d) 16, at paras. 30-32.
[38] The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is challenging because it is contextual and fact-specific. The caselaw meets this challenge by establishing principles to guide the assessment: George, at paras. 2, 9. I distill those principles in these reasons.
[39] The second element implements Parliament’s protective purpose by setting a high bar: 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. Parliament’s protective purpose drives judges’ assessment of whether adults have met that high bar and favours requiring adults to take more, not fewer steps: George, at para. 2; W.G., at para. 62; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 (“Dragos (ONCA)”), at para. 38. This high bar ensures that the “all reasonable steps” element is robust and protects young people as much as reasonably possible: R. v. Hayes, [1991] A.J. No. 1232 (Q.B.), at para. 9.
[40] The second element has two interrelated requirements. First, the accused must take all the steps that a reasonable person would take in the circumstances known to the accused to ascertain the complainant’s age. Second, those steps must provide information that would cause a reasonable person to accept as true that the complainant was of legal age: W.G., at paras. 60-61; R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, at paras. 40, 54, leave to appeal refused, [2016] S.C.C.A. No. 35.
[41] These requirements make clear that a reasonable person would demand compelling information that establishes the complainant’s age with a high degree of certainty before accepting as true that the complainant was of legal age: R. v. Osborne (1992), 1992 CanLII 7117 (NL CA), 102 Nfld. & P.E.I.R. 194 (N.L.C.A.), at para. 62. Carbone’s teaching that awareness of even a low risk that the complainant is underage is recklessness and precludes belief that the complainant is of legal age confirms that this high degree of certainty is required. So does the grave harm that proceeding with sexual activity with an underage young person can cause, as well as the absence of social value to offset risking that harm that Carbone highlighted: at para. 125. Reasonable people would want to be sure that they are not running the risk of causing the “‘life-altering’” and “devastating” consequences that adult/youth sexual activity inflicts on underage young people, including the heightened risks of physical injury, suicide, substance abuse, and unwanted pregnancy that sexual violence by adult men against adolescent girls causes: Friesen, at paras. 74, 136, 142, quoting R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76. The definition of belief as accepting the truth of something and requiring more certainty than mere supposition reinforces the need for this high degree of certainty: Geil, at para. 55.
[42] Steps to ascertain age are only meaningful if they obtain compelling information that establishes the complainant’s age with a high degree of certainty. If they do not, then the accused must take additional steps: Morrison, at paras. 106-108. Adults cannot take a casual, box-checking approach to ascertaining the complainant’s age that is focused on establishing plausible deniability rather than reasonable belief: Osborne, at para. 62; Dragos (ONCA), at para. 46.
[43] Courts have identified several common scenarios where the accused must take additional steps to ascertain age. These scenarios include, without limitation:. 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. [44] Stereotypical and/or illogical reasoning is not compelling and would not cause a reasonable person to believe that the complainant was of legal age. For example, a reasonable person would not infer that complainants are 16 or older because they offer to exchange sex for money since young people below the legal age may also do so: Gashikanyi, at para. 16; Moise, at para. 33. Likewise, a reasonable person would appreciate that underage young people can look like they are 16 or older and would be wary of relying on appearance to jump to conclusions about age: Hayes, at para. 21. For instance, a reasonable person would not conclude that a young woman is 16 or older because she is 5 foot 5 inches tall, weighs 160 pounds, and has some breast development: Gashikanyi, at para. 17. While visual observation may be sufficient in some circumstances (Chapman, at paras. 41-42), these circumstances will be rare because it is not a reliable indicator: Hayes, at para. 21; R. v. R.A.K. (1996), 1996 CanLII 7277 (NB CA), 175 N.B.R. (2d) 225 (C.A.), at para. 8.
[45] Because 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: R. v. Angel, 2019 BCCA 449, 382 C.C.C. (3d) 149, at para. 59, leave to appeal refused, [2020] S.C.C.A. No. 35. Rather, the reasonable person would recognize that many underage young people engage in these activities: Chapman, at paras. 52-53; R. v. Hadvick, 2024 YKCA 2, at para. 88. Often, such young people are especially vulnerable to sexual violence, for example because they are in state care: Friesen, at paras. 70-73; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at paras. 3, 62, leave to appeal refused, [2022] S.C.C.A. No. 39; R. v. Gudmandson, 2018 MBPC 31, at paras. 39, 58; R. v. Moazami, 2015 BCSC 2055, at paras. 96-98. Reliance on these factors to conclude that a young person is 16 or older thus risks undermining Parliament’s protective purpose by providing less protection to those especially vulnerable young people who need it most: Hadvick, at paras. 79-80, 88; see also Grant & Benedet, at pp. 29-30.
[46] Because drinking, smoking, drug use, and sexual activity are unreliable indicators and reliance on them risks undermining Parliament’s protective purpose, these activities are generally not sufficient to ground a reasonable belief: R. v. Mastel, 2011 SKCA 16, 268 C.C.C. (3d) 224, at para. 18. Instead, the accused must also usually obtain more reliable indicators of age, such as attendance at adult-only social events, graduation from high school, employment, or the ability to drive: Chapman, at paras. 52-53; R. v. Tannas, 2015 SKCA 61, 21 C.R. (7th) 166, at paras. 33-34; R. v. C.J.C., 2018 NLCA 68, 370 C.C.C. (3d) 522, at paras. 40, 51, 55.
[47] Finally, accused persons may not proceed with sexual activity unless and until they have taken steps that would cause a reasonable person to believe that the complainant is 16 or older. Sometimes taking steps that are immediately available at a specific point in time may not yield compelling information right away, such as if the complainant declines a request to provide identification or cannot provide it promptly. In these circumstances, accused persons cannot roll the dice and proceed with sexual activity just because they have checked a few boxes since a reasonable person would not run the risk of inflicting life-altering and devastating consequences on the complainant. Rather, accused persons must desist from sexual activity until they can take additional steps to ascertain age because the information they have obtained would not cause a reasonable person to believe that the complainant is 16 or older: Morrison, at paras. 106-108; R. v. MacDonald, 2023 NSPC 21, at para. 70.
[48] Negating 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: Carbone, at paras. 125-127.
[49] While negating the defence is not sufficient to convict the accused, it does make it easier for the Crown to prove that the accused had a blameworthy mental state by eliminating the accused’s claim that he believed that the complainant was of legal age. This leaves only four possible mental states that the accused could have: (1) belief that the complainant was underage, (2) wilful blindness as to the complainant’s age, (3) subjective appreciation of the risk that the complainant was underage, and (4) complete inattention to the complainant’s age. The first three mental states lead inevitably to a conviction because they respectively constitute the blameworthy mental states of belief, wilful blindness, and recklessness: W.G., at paras. 67-70, 81.
[50] The fourth mental state, complete inattention to the complainant’s age, is usually reckless and thus results in conviction. This is because failing to turn one’s mind to the age of the complainant generally reflects a choice to take a risk that the complainant might be underage. Nonetheless, this court has recognized that, in some rare circumstances, accused persons’ failure to turn their mind to the complainant’s age may not reflect a choice to take the risk that the complainant is underage. In those circumstances, the accused should be acquitted because the Crown has not proved recklessness: W.G., at paras. 69-70; Carbone, at paras. 126-127, 131.
[51] I recognize that ordinary people would likely find it counterintuitive and surprising that accused persons could, even in rare circumstances, be acquitted of sexual offences against children despite having failed to turn their minds to the complainant’s age and take all reasonable steps to ascertain that age. They would not be wrong to be surprised. Before the Supreme Court’s 2019 Morrison decision, the law was clear that proof that the accused had not taken all reasonable steps was sufficient for a conviction: Carbone, at paras. 74-78. But Morrison seemed to revise the Supreme Court’s prior decision in George concerning s. 150.1(4)’s all reasonable steps requirement by commenting that negating that requirement was not sufficient to convict the accused: Morrison, at paras. 86-91. These comments opened up the concerning possibility that, contrary to Parliament’s intent in enacting s. 150.1(4), accused persons who unreasonably failed to turn their mind to the complainant’s age and take all reasonable steps to ascertain that age could be acquitted: Grant, at pp. 7-8, 28-29. While at least one other court has treated those comments as only applicable to the child luring offence at issue in Morrison due to these concerns (Angel, at paras. 50-52), this court decided in Carbone that those comments provided binding guidance concerning other offences involving sexual activity with young people: Carbone, at paras. 74, 116-120. This court remains bound by Carbone’s interpretation of Morrison unless and until the Supreme Court revises or clarifies its comments in Morrison or Parliament changes the law.
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