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The Defence of Mistake of Age in Sexual Assault

For certain sexual offences against young people, such as sexual interference, it is a defence in some circumstances to be mistaken about their age. In order for this defence to be valid, an accused person must take all reasonable steps to ascertain the age of the complainant. So, what does "all reasonable steps" actually mean? The Supreme Court of Canada provided some guidance in the recent case of R. v. George.

In George, the accused was 35 years old when she had sex with C.D., a male youth who was approximately 14 and a half. At the time, she presumed that C.D. was around 17. G was charged with the offences of sexual interference and sexual assault. Her only available defence was mistake of age.

The Supreme Court of Canada upheld the acquittal and explained the nature of the defence of mistake of age. Determining what raises a reasonable doubt in respect of the defence is a highly contextual, fact-specific exercise. In some cases, it may be reasonable to ask a partner's age. It would be an error, however, to insist that a reasonable person would ask a partner's age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner's age in every case, given the commonly recognized motivation for young people to misrepresent their age. That said, at least one general rule may be recognized: the more reasonable an accused's perception of the complainant's age, the fewer steps reasonably required of them.

The Court held that the trial judge had appropriately considered various factors, including C.D.'s physical appearance, behaviour and activities, the age and appearance of C.D.'s social group, and the circumstances in which Ms. George had observed C.D. Furthermore, some evidence about the complainant after the fact could be considered. The Court stated that, for example, consider a photograph of an underage complainant taken a week after impugned sexual activity, in which the complainant looks as old as 21. The adult charged with assaulting the complainant could not have relied on viewing the photograph itself as one of their reasonable steps, because it was taken after the sexual activity occurred. But that is not the purpose for which the photograph would be tendered as evidence. Rather, the photograph would be tendered as evidence for the purpose of proving the complainant's physical appearance around the time of the sexual activity, which could, depending on the circumstances, be relevant to the reasonableness of the accused person's perception of the complainant's age.

The Supreme Court of Canada's decision in George provides some helpful guidance as to what kinds of evidence are relevant to the defence of mistaken age.

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The Defence of Mistake of Age in Sexual Assault | Bayne Sellar Ertel Carter