When you should Ask about Age?
The issue of mistaken belief about an individual’s age as it relates to sexual offences against minors has been readily debated, and not just amongst the legal community. Canadian law requires that a mistaken belief about the complainant’s age be conjoined with reasonable steps taken to ascertain that age. Like most legal tests before it, the measure of whether reasonable steps were taken is assessed in reference to steps that a reasonable person in the same circumstances would have taken. The Saskatchewan Court of Appeal in R v Tannas, [2015] SJ No 284 has recently discussed the pragmatic side of the test. The accused in that case failed to make any inquiry about the complainant’s age. The Court of Appeal said that failing to ask a complainant’s age is not conclusive proof that the accused had failed to take all reasonable steps, and that the Crown had the additional task of proving that there were no compelling factors that obviated the need to make that inquiry.
In Tanner, there was evidence from both Crown and Defence witnesses present during the evening of the incident that the complainant did not dress or behave like she was younger than 16. According to the Court of Appeal, the Crown had failed to demonstrate the absence of compelling factors that obviated the need for the accused to make inquiries about the complainant’s age. In short, evidence that the complainant appeared to be older than 16 sufficient obviated the need to make any further inquiry prior to engaging in sexual activity. This decision is not the first to acknowledge that an inquiry about the complainant’s age is not a necessary step given the right circumstances. The Newfoundland Court of Appeal in 1992 made a similar finding in R v Osborne (1992) 17 CR (4th) 350 when they reasoned that there must be an earnest inquiry into the complainant’s age OR other factors that obviate the need for that inquiry. The reason Tannas is interesting is because the complainant’s manner of dress, and her behaviour sufficiently did away with the need to make an inquiry about her age. What Tannas has reaffirmed is that the burden remains squarely on the Crown’s shoulders in requiring them to prove beyond a reasonable doubt that a person accused of engaging in otherwise consensual sexual activity with a minor was in fact required by law to make inquiry into that individual’s age.
