Le droit relatif à l'erreur sur l'âge comme moyen de défense

R. v. Bruce, 2024 MBKB 104

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[37]      The law regarding mistake of age in relation to sexual offences is comprehensively explained in R. v. Hason, 2024 ONCA 369, at paras. 33-47.   I would summarize these paragraphs as follows:

•                     The law 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.        

•                     The mistake of age 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.

•                     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.  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.

•                     The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is contextual and fact specific.        

•                     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.

•                     A reasonable person would seek compelling information that establishes the complainant’s age with a high degree of certainty because a reasonable person would not want to run the risk of causing the lasting negative consequences that adult/youth sexual activity inflicts on underage young people.

•                     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.

•                     Stereotypical and/or illogical reasoning 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.

•                     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.  While visual observation may be sufficient in some circumstances, these circumstances will be rare because it is not a reliable indicator.

•                     A reasonable person would 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. 

•                     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.

•                     Finally, accused persons may not proceed with sexual activity unless and until they have taken all reasonable steps to ascertain the complainant’s age.  Sometimes taking steps 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. Rather, accused persons must desist from sexual activity until they can take additional steps to ascertain age.

[38]       As noted above, the mistake of age defence in relation to the luring charges (s. 172(1)(a) and (b)) is qualified by the requirement that the accused take reasonable steps to ascertain the age of the complainant.  Whereas the mistake of age defence in relation to charges of sexual assault (s. 271), sexual interference (s. 151), invitation to sexual touching (s. 152), and obtaining for consideration sexual services of a person under the age of 18 (s. 286.1) is qualified by the requirement that the accused take all reasonable steps to ascertain the age of the complainant.   The Hason decision addresses the latter requirement.  However, in my view, the distinction between the two requirements is of no moment in the case before me.  Like the assessment of whether the accused took all reasonable steps, the assessment of whether the accused took reasonable steps is contextual and fact specific.  The steps to be taken must be reasonable steps in the circumstances known to the accused and must be meaningful (R. v. Alekozai, 2021 ONCA 633, at para. 45).  As I will explain, I find that the steps taken by Mr. Bruce meet neither the all reasonable steps requirement nor the reasonable steps requirement.