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Criminal - Mens Rea - Recklessness. R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered the mens rea for 'recklessness', here were adjudging the age of a potential sexual offence victim:[38] In June 2020, this court released its decision in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. The appellant’s trial took place 4 months later, in October 2020. In Carbone, this court clarified the law on what the Crown must prove to establish the mens rea for sexual offences against minors. Prior to Carbone, the Crown was only required to prove beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. In Carbone, relying on the Supreme Court of Canada’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, this court held that the Crown is additionally required to prove beyond a reasonable doubt that the accused believed the complainant was underage. The court summarized, at paras. 120 and 131, this new approach as follows:As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant’s age by reference, only to the absence of reasonable steps to determine the complainant’s age. There is a mens rea requirement that focuses exclusively on the accused’s state of mind. The Crown is required to prove the accused believed the complainant was underage.
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In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant’s age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one’s mind to the age of the complainant does not reflect the decision to take a risk about the complainant’s age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant’s age. [39] The trial judge did not refer to Carbone in her reasons, nor was this case put before her by counsel for either party. However, in our view, her findings clearly support the conviction under the mens rea requirement as set out in Carbone. The trial judge found on the appellant’s own evidence that he chose to proceed with sexual activity with a minor after clearly adverting to the possibility that she was underage.
[40] As Watt J.A. in R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 70, noted:As Carbone teaches, the fault element of recklessness is subjective. It involves the appreciation of some level of risk coupled with the conscious decision to take that risk. Under s. 151, an accused who chooses to proceed with the activity the section prohibits – sexual activity with young persons – after having adverted to the possibility that the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age: Carbone, at para. 125. So too, at least in most cases, indifference to the complainant’s age, a state of mind that reflects a positive choice by an accused to treat the complainant’s age as irrelevant to their decision to engage in the sexual activity: Carbone, at paras. 126-127.
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