R. v. Tannas (M.), 2015 SKCA 61

• Judge: Lane, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 17, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 61;(2015), 460 Sask.R. 161 (CA)

R. v. Tannas (M.) (2015), 460 Sask.R. 161 (CA);

    639 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.025

Michael Tannas (appellant) v. Her Majesty the Queen (respondent)

(CACR2465)

Her Majesty the Queen (appellant) v. Michael Tannas (respondent)

(CACR2466; 2015 SKCA 61)

Indexed As: R. v. Tannas (M.)

Saskatchewan Court of Appeal

Lane, Ottenbreit and Caldwell, JJ.A.

June 12, 2015.

Summary:

The accused was 26 years old and C.W. was 13 years old when they had consensual sex. He was charged with sexual assault. The accused put forward the defence of mistake of fact, testifying that he had believed that C.W. was at least 16 years old.

The Saskatchewan Court of Queen's Bench disallowed the defence of mistake of fact, finding that the accused had not taken "all reasonable steps" to ascertain C.W.'s age as required by s. 150.1(4) of the Criminal Code. The court sentenced the accused to 14 months' imprisonment, one year's probation, a 10 year firearms prohibition and a 20 year sex offender information registration. The accused appealed the conviction. The Crown appealed the sentence.

The Saskatchewan Court of Appeal allowed the accused's appeal and found him not guilty. The court did not address the Crown's 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 - Section 150.1(4) of the Criminal Code provided that it was not a defence that an accused charged with one of the listed sexual offences "... believed that the complainant was 16 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." - The Saskatchewan Court of Appeal reviewed the law applicable to s. 150.1(4) - See paragraphs 21 to 29.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The accused was 26 years old and C.W. was 13 years old when they had consensual sex - He was charged with sexual assault - He put forward the defence of mistake of fact, testifying that he had believed that C.W. was at least 16 years old - The trial judge disallowed the defence, finding that the accused had not taken "all reasonable steps" to ascertain C.W.'s age as required by s. 150.1(4) of the Criminal Code - The Saskatchewan Court of Appeal allowed the accused's appeal - The trial judge placed undue weight on the age disparity between the accused and C.W. thereby overlooking or overriding other circumstances relevant to an objective assessment of C.W.'s apparent age - The judge failed to consider whether a reasonable person in the accused's circumstances would have objectively perceived the subjective age disparity - On the whole, the circumstances (particularly the fact that the accused and C.W. had just met, coupled with objective indicia of C.W.'s apparent age, her physical appearance and behaviour at the two parties which she and the accused had attended, the apparent ages and appearances of the other partygoers, the adult activities in which she and the other partygoers engaged) were all relevant to the determination of what steps a reasonable person in the accused's shoes would have taken to ascertain C.W.'s age - The totality of the circumstances obviated the need for him to undertake a direct inquiry as to C.W.'s age - All objectively measurable indicia available to the accused reasonably led him to honestly believe that C.W. was at least 16 years of age - He had no intention of having sex with a minor and only did so by reason of a mistake of fact - See paragraph 18 to 40.

Cases Noticed:

R. v. Saliba (B.) (2013), 311 O.A.C. 196; 2013 ONCA 661, refd to. [para. 17].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 17].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; 52 C.C.C.(2d) 481, refd to. [para. 21].

R. v. Levigne (M.R.), [2010] 2 S.C.R. 3; 403 N.R. 275; 482 A.R. 49; 490 W.A.C. 49; 2010 SCC 25, refd to. [para. 23].

R. v. Slater (F.), [2006] 5 W.W.R. 233; 269 Sask.R. 42; 357 W.A.C. 42; 201 C.C.C.(3d) 85; 2005 SKCA 87, refd to. [para. 23].

R. v. Mastel (D.R.) (2011), 366 Sask.R. 193; 506 W.A.C. 193; 268 C.C.C.(3d) 224; 2011 SKCA 16, refd to. [para. 25].

R. v. Osborne (J.M.) (1992), 102 Nfld. & P.E.I.R. 194; 323 A.P.R. 194; 17 C.R.(4th) 350 (Nfld. C.A.), refd to. [para. 25].

R. v. R.D. (2013), 306 O.A.C. 301; 2013 ONCA 343, refd to. [para. 25].

R. v. Dragos (B.) (2012), 294 O.A.C. 371; 291 C.C.C.(3d) 350; 2012 ONCA 538, refd to. [para. 25].

R. v. L.T.P. (1997), 86 B.C.A.C. 20; 142 W.A.C. 20; 113 C.C.C.(3d) 42 (C.A.), refd to. [para. 26].

R. v. Gashikanyi (P.M.) (2015), 588 A.R. 386; 626 W.A.C. 386; 16 C.R.(7th) 369; 2015 ABCA 1, refd to. [para. 27].

R. v. R.A.K. (1996), 175 N.B.R.(2d) 225; 446 A.P.R. 225; 106 C.C.C.(3d) 93 (C.A.), refd to. [para. 27].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 38].

R. v. Smith (S.A.) (2007), 299 Sask.R. 312; 408 W.A.C. 312; 223 C.C.C.(3d) 114; 2007 SKCA 71, refd to. [para. 38].

R. v. Keepness (S.C.) (2007), 293 Sask.R. 77; 397 W.A.C. 77; 2007 SKCA 42, refd to. [para. 38].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 150.1(4) [para. 21 et seq.].

Authors and Works Noticed:

Manning, Morris, and Sankoff, Peter, Criminal Law (4th Ed. 2009), p. 907 [para. 39].

Counsel:

Aaron Fox, Q.C., for Michael Tannas;

Andrew Davis, for the Crown.

This appeal was heard on April 17, 2015, by Lane, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following judgment for the court on June 12, 2015.