The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence

Abstract

This article examines the demise of the “all reasonable steps” requirement in s. 150.1(4) of the Criminal Code which limits an accused’s ability to assert a mistaken belief in age as a defence to sexual offences against children where he has failed to take such steps. The article demonstrates that the Court of Appeal for Ontario in R v Carbone has rendered this requirement meaningless in Ontario. Even where the Crown has met its burden to prove beyond a reasonable doubt that the accused did not take “all reasonable steps” to ascertain age, the Crown must still go on and prove mens rea as to the fact that the complainant was under the age of consent. The article argues that, where there is no suggestion that a legislative provision is unconstitutional, courts should not use statutory interpretation to effectively read a legislative provision out of existence, especially where it was intended to protect children from sexual contact with adults.