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What Are Reasonable Steps?

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Neuberger & Partners LLP
Criminal Lawyers


The Ontario Court of Appeal recently offered guidelines on how to interpret and assess “reasonable steps” in light of both R. v. Morrison, 2019 SCC 15 and R. v. Carbone, 2020 ONCA 394.

In R. v. W.G., 2021 ONCA 578, the trial judge had believed the accused that he honestly thought the person he was dating was 18 years old but convicted him for failing to take reasonable steps.

Since the Supreme Court of Canada issued their decision in Morrison, there has been some confusion as to how that affects “reasonable steps” in other cases. It has been repeatedly held by the Courts of Appeal that Morrison does not affect cases where there is a real underage victim.

Morrison was a child luring “sting” operation in which there was no actual underage person, only a police officer posing as a 14 year old girl. The SCC struck down the provision that an accused can be presumed to have known someone was underage if they had been told at some point that the imaginary person was under the age of consent.

The case of W.G. involved a 50 year old man who arranged a sexual relationship through a site called Grindr with a 14 year old female to male transgender person. Though the website, which serves the gay community, requires that users be 18 years old it is common for people to lie about their age on the site. W.G. had lied about his own age and represented himself as being slightly younger.

The Court of Appeal agreed with the trial judge that there were a variety of factors that should have raised “red flags” and caused a reasonable person to ask the complainant for identification prior to engaging in a sexual encounter.

The accused had picked the youth up at highschool and knew he lived at home with his parents. The youth also physically appeared to be extremely young.

When raising a mistake of age defence, the burden is only on the accused to give the defence an “air of reality.” Once they have shown an air of reality, the burden shifts to the Crown to either prove that the accused knew the person to be underage or prove that the accused was reckless or wilfully blind as to the person’s age.

The guidelines given by Justice Watt in W.G. are that “The ‘all reasonable steps’ analysis required under s. 150.1(4) is highly contextual and fact specific. As a general rule, the more reasonable an accused’s perception of the complainant’s age, the fewer steps required of the accused to satisfy the standard of diligence imposed. [citation removed]”

In summary, it is not enough for an accused to actually believe that a youth is as old as they say they are. Where there are signs that the person may be lying about their age it is essential to take steps to verify that they are the age of consent.

A defence against sexual charges involving a minor who misrepresented their age will rarely succeed unless the accused can point to vigilant steps taken to convince them that the youth was old enough to consent.

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