MLB Headnote and Key NumbersR. v. Chapman, 2016 ONCA 310 (CanLII)
R. v. Chapman (M.) (2016), 348 O.A.C. 183 (CA)
MLB headnote and full text
Temp. Cite:  O.A.C. TBEd. AP.044
Her Majesty the Queen (appellant) v. Michael Chapman (respondent)
(C60515; 2016 ONCA 310)
Indexed As: R. v. Chapman (M.)
Ontario Court of Appeal
Cronk, Tulloch and van Rensburg, JJ.A.
April 28, 2016.
The accused was acquitted of six sexual offences involving two girls under the age of 16. The girls, 14.5 and 15.5. at the time, had been hitchhiking when the accused, then 40, picked them up. The girls had participated willingly in the sexual acts. The accused availed himself of the mistake of age defence (Criminal Code, s. 150.1(4)). The Crown appealed.
The Ontario Court of Appeal dismissed the appeal.
Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.
Criminal Law - Topic 674
Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The Ontario Court of Appeal stated that "Section 150.1(4) of the Code does not require that an accused make every possible inquiry to ascertain a complainant's age in order to successfully mount a mistake of age defence. Nor do the established authorities suggest that an accused must always expressly question a complainant about his or her age, or otherwise seek and obtain conclusive proof of age, in order to avail himself or herself of the s. 150.1(4) defence. Rather, the section requires that all reasonable steps be taken to ascertain a complainant's age. ... [W]hat is 'reasonable' will vary, depending on the context and all the circumstances." - See paragraph 50.
Criminal Law - Topic 674
Sexual offences - Rape or sexual assault - Defences - Mistake of fact - There was no dispute that the accused subjectively believed that the complainants (14.5 and 15.5) were over 16 years of age - The contentious issue was whether he took all reasonable steps to ascertain their true ages - The trial judge held that, based on the complainants' demonstrated actions, demeanour, self-professed stated objectives and portrayal of themselves as older than their true ages on the night in question, along with the total "constellation of factors", the accused was not required to make further inquiries - He acquitted the accused of all charges - The Ontario Court of Appeal dismissed the Crown's appeal - The trial judge properly identified the legal principles governing the mistake of age defence (Criminal Code, s. 150.1(4)) - It was open to the trial judge on the record before him to conclude that a reasonable person in the accused's circumstances would not have made any positive inquiries to ascertain the complainants' ages, based on the compelling indicia of age present in this case - "[T]he combined effect of the evidence of the information provided to the [accused] and the observations made by him justified the trial judge's conclusion that the need to inquire further about the complainants' ages was obviated. Accordingly, in the somewhat unusual circumstances of this case, it was open to the trial judge to conclude, on the compelling factors that he identified, that a reasonable person would have been satisfied that the complainants were over the age of 16, just as the complainants intended, without the need for further inquiry." - See paragraphs 24 to 54.
Christine Bartlett-Hughes and Hannah Freeman, for the appellant;
Brian H. Greenspan and Naomi M. Lutes, for the respondent.
This appeal from acquittals was heard on January 7, 2016, before Cronk, Tulloch and van Rensburg, JJ.A., of the Ontario Court of Appeal. In reasons written by Cronk, J.A., the Court delivered the following judgment, released on April 28, 2016.