Criminal Code of Canada - section 150.1(5) - Idem

section 150.1(5)

INTRODUCTION AND BRIEF DESCRIPTION

It is not a defence to certain charges that the accused believed the complainant was 18 or older unless they took reasonable steps to verify the age.

SECTION WORDING

150.1(5) It is not a defence to a charge under section 153, 159, 170, 171 or 172 or subsection 212(2) or (4) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

EXPLANATION

Section 150.1(5) of the Criminal Code of Canada is a provision related to specific offences, including sexual exploitation, luring a child, sexual interference, and invitation to sexual touching. In essence, this provision eliminates the defence of mistaken belief in the age of the complainant in cases where the accused has been charged with any of the listed offences. The main purpose of this provision is to protect minors from sexual offences and to ensure that those who engage in sexual activities with them are held accountable for their actions. Even if the accused believed that the complainant was over 18 years of age at the time of the offence, this provision implies that their defence would not be accepted unless they had taken all reasonable steps to ascertain the age of the complainant. Therefore, this section creates a higher standard of care on the part of the accused to ensure that they are not engaging in sexual activity with minors. This provision also sends a clear message that it is the responsibility of the accused to verify the age of their sexual partners, with any failure to do so resulting in criminal consequences. Overall, the inclusion of section 150.1(5) in the Criminal Code of Canada serves as a critical measure towards the protection of minors from sexual exploitation and abuse. It clarifies that mistaken belief in a complainant's age is not a defence in cases of specific offences, and emphasizes the importance of taking all reasonable steps to ensure that sexual activity is consensual and legal.

COMMENTARY

Section 150.1(5) of the Criminal Code of Canada deals with the concept of mistake of age as a defense to charges related to sexual offences. The provision makes it clear that an accused person cannot use the defense that they believed the complainant was of legal age unless they took all the reasonable steps to ascertain the age of the complainant. In this commentary, we will discuss the reasons behind the introduction of this provision, its impact on the legal system, and critique its effectiveness in achieving its goals. The introduction of this provision in 2008 aimed to prevent adults from using the defense of mistake of age in cases involving sexual offences with minors. The provision recognizes that the protection of children from sexual exploitation and abuse is critical, and their vulnerability requires a higher standard of care from adults. The provision seeks to deter adults who may be tempted to take advantage of a minor's perceived vulnerability by holding them accountable for their actions. The provision also reflects the underlying principles of criminal law, which provide that ignorance of the law is no excuse. Section 150.1(5) has significant implications for criminal law practice. It highlights the importance of due diligence in sexual offence cases and places a burden on the accused to take all reasonable steps to ascertain the age of the complainant. This means that the accused must make appropriate enquiries about the complainant's age and not rely solely on their perception or assumptions. Reasonable steps may include checking identification documents or asking the complainant directly about their age. Failing to take these reasonable steps could result in a conviction, even if the accused believed the complainant was of legal age. The provision also raises questions about the effectiveness of the criminal justice system in protecting vulnerable individuals. While the provision provides greater protection for minors, it begs the question of whether they should be put in the position of having to take all reasonable steps to protect themselves. Perhaps society should take a more proactive approach to protecting young people, rather than placing the onus entirely on potential offenders. Moreover, Section 150.1(5) raises concerns about the presumption of innocence. The accused person is required to prove that they took all reasonable steps to ascertain the age of the complainant. This provision may place an undue burden on the accused to prove that they did everything they reasonably could to avoid committing an offence. It may also result in some individuals being charged and convicted even if they honestly believed the complainant was of legal age and took steps to determine that. In conclusion, Section 150.1(5) of the Criminal Code of Canada is an essential provision designed to protect children from sexual abuse and exploitation. It requires individuals who may be tempted to take advantage of a minor to take all reasonable steps to ascertain the age of the complainant. However, while this provision serves to protect children, it raises concerns about the presumption of innocence and places an undue burden on the accused to prove their innocence. The provision highlights the importance of protecting children and encourages society to take a more proactive approach to their protection.

STRATEGY

Section 150.1(5) of the Criminal Code of Canada presents a serious challenge for individuals charged under section 153, 159, 170, 171, or 172 or subsection 212(2) or (4) who believed that the complainant was eighteen years of age or more at the time the offense was alleged to have been committed. This provision of the law stipulates that unless the accused took all reasonable steps" to ascertain the age of the complainant, ignorance of the complainant's actual age will not be considered a defense. Given the harshness of this provision, there are several strategic considerations for individuals charged under this section of the Criminal Code of Canada: 1. Defense Strategy: Argue for the Lack of Intent One potential defense strategy for accused individuals is to argue that they lacked criminal intent. If they can prove that they did not possess the intention to engage in a criminal act, they may be acquitted of the charges. For example, if the accused believed that the complainant was over eighteen and thus competent, then they might argue that they lacked the intent to commit an offense. 2. Taking Reasonable Steps Another strategy for accused individuals is to establish that they took reasonable steps to ascertain the complainant's age. This might involve seeking identification from the complainant or ascertaining their age from other sources. For example, if the accused obtained identification from the complainant indicating that they were over eighteen, it might be argued that they took reasonable steps to ascertain their age. 3. Application of Human Rights Laws Another strategic consideration would be to challenge the constitutionality of section 150.1(5) of the Criminal Code of Canada under the Charter of Rights and Freedoms. This could be done on the basis that the provision discriminates against individuals on the grounds of age in contravention of section 15 of the Charter. 4. Plea Bargain Finally, another strategic consideration might involve a plea bargain. Given the harshness of section 150.1(5) of the Criminal Code of Canada, it might be in the accused's best interest to negotiate a plea bargain with prosecutors to avoid a trial and potentially heavier penalties. In summary, being aware of the provisions of section 150.1(5) of the Criminal Code of Canada is essential for individuals charged under sections 153, 159, 170, 171, or 172 or subsection 212(2) or (4). Regardless of the particulars of the case, taking all reasonable steps to ascertain the age of the complainant, challenging the constitutionality of the provision, and negotiating a plea bargain are all important strategic considerations that could potentially aid the accused in avoiding heavy penalties.