R. v. Esau

R. v. Esau
Collection
Supreme Court Judgments
Date
1997-07-10
Report
[1997] 2 SCR 777
Case number
25409
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Northwest Territories
Subjects
Criminal law
Notes
SCC Case Information: 25409
Decision Content
R. v. Esau, [1997] 2 S.C.R. 777
Her Majesty The Queen Appellant
v.
Able Joshua Esau Respondent
Indexed as: R. v. Esau
File No.: 25409.
1997: March 18; 1997: July 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for the northwest territories
Criminal law ‑‑ Sexual assault ‑‑ Defences ‑‑ Defence of honest but mistaken belief in consent ‑‑ Whether trial judge erred in not putting defence to jury ‑‑ Whether there was sufficient evidence to give defence “air of reality”.
Criminal law ‑‑ Sexual assault ‑‑ Defences ‑‑ Defence of honest but mistaken belief in consent ‑‑ Defence not raised by accused at trial ‑‑ Whether defence can be raised on appeal.
The accused, a second cousin of the complainant, had sexual intercourse with her after a party at her home. The accused was later charged with sexual assault and tried before a jury. At trial, the accused testified that, in his view, the complainant was in a condition to be “able to control what she was doing”. He said that they kissed each other and then she invited him to come to her bedroom, where they had consensual sexual intercourse. The complainant testified that she was drunk and denied kissing the accused and inviting him to her bedroom. She testified that she had no memory of anything from the time she went to her bedroom until the next morning when she awoke and realized that she had engaged in sexual intercourse. Although she could not remember what occurred, the complainant testified that she would not have consented to intercourse with the accused because they were related. The trial judge charged the jury on the issue of consent, but not on the defence of honest but mistaken belief in consent. Defence counsel did not object. The accused was convicted of sexual assault. On appeal, the Court of Appeal, by majority, allowed the appeal, quashed the conviction and ordered a new trial. The court concluded that there was an ‘air of reality’ to the defence of honest but mistaken belief and that, notwithstanding the failure of defence counsel to raise the issue, the trial judge was obliged to put that defence to the jury.
Held (L’Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Iacobucci and Major JJ.: Before a court should consider the defence of honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence. Here, the plausible evidence comes from the testimony of the complainant and the accused and the surrounding circumstances of the alleged sexual assault. The accused’s evidence amounted to more than a bare assertion of belief in consent. He described specific words and actions on the part of the complainant that led him to believe that she was consenting. This alone may be enough to raise the defence, but there was more. The complainant’s evidence did not contradict that of the accused, as she cannot remember what occurred after she went to her bedroom. In addition there was no evidence of violence, struggle or force. The absence of resistance or violence alone could not raise the defence as it is only one factor that must be considered. Moreover, not only was the testimony of the parties not “diametrically opposed”, but even on a slightly stricter test, the parties’ stories may be “cobbled together” in a coherent manner. The complainant did not testify that she did not in fact consent, but was only able to say that because she was related to the accused, she would not have consented. The accused’s evidence of the complainant’s participatory actions, if believed, might lead a jury to conclude that he honestly believed she was consenting despite his being mistaken about her ability to legally consent because of intoxication. This meets the threshold of a plausible explanation of the facts and should have been put to the jury. The question of whether a particular complainant could inadvertently disguise her intoxication, say things or perform acts that raise an honest but mistaken belief in consent is for the jury to determine taking into account all the factors in the case. A court cannot make an a priori determination that honest but mistaken belief is impossible when the complainant is intoxicated. Lastly, while passivity by the complainant may not be consent, her absence of memory has to be considered with the evidence of the accused that the complainant seemed to participate willingly. This is sufficient to justify charging the jury on that defence.
Section 273.2 of the Criminal Code was not raised at the trial or on the appeal. Those circumstances restrict this Court’s ability to consider the effect of that section.
Although the defence of honest but mistaken belief was not raised at trial, it is not a bar to its being raised on appeal. A trial judge must charge the jury on every defence which has an “air of reality”, whether or not that defence is raised by the accused.
Per McLachlin J. (dissenting): Section 273.2 of the Criminal Code provides that, in a case of sexual assault, an accused cannot raise the defence of mistaken belief in consent if he did not take “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. In this case, where the complainant was on any view of the evidence quite drunk, the absence of any evidence of steps taken by the accused to ascertain consent precludes him from raising the defence.
In any event, an application of the common law principles governing the defence leads to the same result. To put the defence of honest but mistaken belief to the jury, there must be sufficient evidence to give the defence an “air of reality”. Mere assertion of belief in consent by the accused will not suffice to give the defence an air of reality. As well, diametrically opposed assertions by the parties ‑‑ the complainant’s clear consent as far as the accused is concerned, and her clear refusal of consent as far as the complainant is concerned ‑‑ will seldom, if ever, give rise to the defence. Consent for purposes of sexual assault is found in the communication by a person with the requisite capacity by verbal or non‑verbal behaviour to another of permission to perform the sexual act. The issue of mistake as to consent must be assessed on the basis of the particular accused person before the court, but the accused cannot have been wilfully blind or reckless. An accused is not entitled to presume consent in the absence of communicative ability and thus cannot raise the defence in the case of an unconscious or incoherent complainant. Passivity without more is also insufficient to provide a basis for the defence. Since the defence of honest but mistaken belief is designed to meet the situation where there has been an honest miscommunication of non‑consent, it may arise only where the evidence indicates a situation of ambiguity resulting from the complainant’s conduct or external circumstances which the accused, not being wilfully blind or reckless and acting honestly, misinterpreted as consent. The requirements of the defence are thus: (1) evidence that the accused believed the complainant was consenting; (2) evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and (3) evidence of ambiguity or equivocality showing how the accused could honestly, and without wilful blindness or recklessness, have mistaken the complainant’s lack of consent for consent.
Here, the trial judge did not err in failing to put the defence of honest but mistaken belief to the jury, since it did not realistically arise on the evidence. The complainant and the accused presented divergent and incompatible versions of the events. The accused’s evidence is consistent only with capacity and actual consent. The complainant’s evidence is consistent with denial of consent or with unconscious incapacity to give consent. Either the complainant would have vehemently refused sex, or she was unconscious and incapable of refusing it. Neither case suggests a situation of ambiguity or equivocality which the accused could honestly have read as capacity and consent. Drunkenness cannot constitute evidence of a situation in which the complainant might appear to be consenting when in fact she was not. If the complainant is so drunk that she is unable to communicate, she is incapable of giving consent, and no question of honest mistake can arise. If she was less drunk and had the capacity to consent, the question for the jury is whether she actually consented or not, depending on whose evidence they accept. Further, the assertion that the complainant’s drunkenness and lack of memory raise the defence of honest but mistaken belief depends not on the evidence but on speculation. The law, however, does not permit speculation based on stereotypes but rather demands specific evidence of a state of affairs which could give rise to an honest misapprehension of consent when no consent existed. No such evidence was presented in this case. The complainant’s inability to recollect is not in itself evidence of miscommunication. Nor does the absence of evidence of violence support the hypothesis of honest but mistaken belief in consent. If the accused wrongly inferred clear capacity and an active communication of consent from lack of struggle or passivity, he must have been either wilfully blind or dishonest. On the evidence, there were thus only two possible scenarios: either the complainant did not consent to the sexual activity or she had capacity and consented. Neither scenario is consistent with the defence of honest but mistaken belief in consent and there is no evidence to support a third scenario of ambiguity as to capacity or as to what was communicated.
Per L’Heureux‑Dubé J. (dissenting): The reasons of McLachlin J. were agreed with. The traditional common law understanding of “lack of consent” as it relates to the mens rea in the offence of sexual assault should be changed. The customary focus on the complainant’s communication of refusal or rejection of the sexual touching in question should be rejected in favour of an assessment of whether and how the accused ascertained that the complainant was consenting to such activity. The mens rea of the offence should be established where the accused is shown to have been aware of or reckless or wilfully blind as to the fact that the complainant has not communicated consent to the activity in question. In determining whether an accused had the requisite culpable state of mind, it is necessary for the trier of fact objectively to examine not only the verbal and behavioural indicators in the evidence of the complainant’s subjective state, but also the accused’s subjective perception thereof, in light of any relevant circumstances known to him at the time. Where an accused has demonstrated that he honestly, with some basis in the circumstances, misperceived these indicators, and therefore lacked the necessary “culpable mind”, the defence of honest but mistaken belief may arise. Here, there was no evidentiary basis for ambiguous communication on the part of the complainant or external circumstances which could have influenced the perceptions of the accused. The trial judge was thus correct in not putting the defence to the jury.
Cases Cited
By Major J.
Referred to: R. v. Park, [1995] 2 S.C.R. 836; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. M. (M.L.), [1994] 2 S.C.R. 3; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Bulmer, [1987] 1 S.C.R. 782.
By McLachlin J. (dissenting)
Director of Public Prosecutions v. Morgan, [1976] A.C. 182; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Reddick, [1991] 1 S.C.R. 1086; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; People v. Rhoades, 238 Cal. Rptr. 909 (1987); People v. Williams, 841 P.2d 961 (1992); R. v. Darrach (1994), 17 O.R. (3d) 481; R. v. Seaboyer, [1991] 2 S.C.R. 577; People v. Mayberry, 542 P.2d 1337 (1975); People v. Romero, 215 Cal. Rptr. 634 (1985); People v. Vasquez, 281 Cal. Rptr. 661 (1991); Tyson v. Trigg, 50 F.3d 436 (1995); Tyson v. State of Indiana, 619 N.E.2d 276 (1993); Commonwealth v. Fionda, 599 N.E.2d 635 (1992).
By L’Heureux‑Dubé J. (dissenting)
R. v. Park, [1995] 2 S.C.R. 836; State of A.P. v. Murthy, (1997) 1 S.C.C. 272; State of Punjab v. Singh, (1996) 2 S.C.C. 384.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 15 , 28 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 150.1 [ad. c. 19 (3rd Supp.), s. 1 ], 265(3), (4), 273.2 [ad. 1992, c. 38, s. 1].
Authors Cited
Malm, H. M. “The Ontological Status of Consent and its Implications for the Law on Rape” (1996), 2 Legal Theory 147.
Vandervort, Lucinda. “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1987‑88), 2 C.J.W.L. 233.
Webster’s Third New International Dictionary. Springfield, Mass.: Merriam‑Webster, 1986, “consent”.
Wertheimer, Alan. “Consent and Sexual Relations” (1996), 2 Legal Theory 89.
Williams, Glanville. Textbook of Criminal Law. London: Stevens & Sons, 1978.
APPEAL from a judgment of the Northwest Territories Court of Appeal, [1996] N.W.T.R. 242, [1996] N.W.T.J. No. 51 (QL), allowing the accused’s appeal from his conviction for sexual assault and ordering a new trial. Appeal dismissed, L’Heureux‑Dubé and McLachlin JJ. dissenting.
M. David Gates and Bernadette Schmaltz, for the appellant.
Adrian C. Wright and Catherine Stark, for the respondent.
The judgment of Lamer C.J. and Sopinka, Gonthier, Iacobucci and Major was delivered by
1 Major J. -- This appeal returns the Court to a consideration of the defence of honest but mistaken belief in consent in relation to a charge of sexual assault. This defence has been frequently reviewed in recent cases and these reasons strive only to restate what has previously been said.
I. Facts
2 The respondent, a second cousin of the complainant, was one of five people present at a party at the complainant’s home. At the party a considerable amount of alcohol was consumed. The complainant testified that she was drunk. The respondent testified that, in his view, the complainant was in a condition to be “able to control what she was doing”. Other witnesses testified that the complainant looked “pretty drunk”.
3 As the party progressed into the early morning, only the complainant, the respondent and a third person, James Harry, remained in the house. Mr. Harry testified that he did not see any unusual behaviour or physical contact between the respondent and the complainant in his presence. He left the house, leaving the complainant and respondent alone. He testified that at that point the complainant was “pretty high”.
4 The respondent testified that he and the complainant kissed each other and then the complainant invited him to come to her bedroom where they had consensual sexual intercourse. The complainant denied the kissing and said that she had not invited the respondent to her bedroom. She testified that she had no memory of anything from the time she went to her bedroom until the next morning when she awoke and realized that she had engaged in sexual intercourse. Although she could not remember what occurred, the complainant testified that she would not have consented to intercourse with the accused because they were related.
II. Jury Charge
5 The respondent was charged with sexual assault. He was tried before a jury. Prior to closing submissions of counsel, the trial judge discussed with counsel the issues in the case and his proposed jury charge. Crown counsel raised the issue of whether or not the accused would be relying on the defence of honest but mistaken belief in consent. Defence counsel’s position was that the only issue in the case was actual consent.
6 The trial judge charged the jury on the issue of consent, but not on the defence of honest but mistaken belief in consent. Defence counsel did not object. During deliberations, the jury asked a question about consent while impaired and the trial judge recharged the jury on that point.
7 The respondent was convicted of sexual assault. On appeal, the Court of Appeal, by majority, allowed the appeal, quashed the conviction, and ordered a new trial: [1996] N.W.T.R. 242.
III. Court of Appeal Judgment
(1) The Majority
8 Lieberman J.A. (Irving J.A. concurring) noted that neither counsel expressed any objection to the charge, nor made any mention of the absence of instructions on the defence of honest but mistaken belief.
9 Lieberman J.A. concluded (at p. 245):
The accused was consistent in stating that the act of sexual intercourse took place with the consent and active participation of the complainant. His evidence in this regard may well be interpreted as his belief based on his allegations of the complainant's conduct thus raising the defence of honest but mistaken belief. In this case there was evidence in addition to the bare assertion by the [respondent] that if believed could lead a jury to give effect to that defence. There was, therefore, an ‘air of reality’ to that defence. In our respectful view, notwithstanding the failure of counsel to raise the issue, the learned trial judge was obliged to put that defence to the jury.
(2) The Minority
10 Richard J.A., dissenting, found no merit in the appeal from conviction. He stated the trial judge had been alive to the issues raised by the evidence and was correct in concluding that there was no evidence to warrant putting the defence of honest but mistaken belief to the jury. In his opinion the defence lacked the requisite “air of reality”.
11 Richard J.A. pointed out that experienced counsel did not request the trial judge to instruct the jury on this defence. Although this failure was not fatal on appeal, he said it was a factor to be considered in deciding whether there was an air of reality to the mistaken belief defence.
12 Richard J.A. held that the defence of honest but mistaken belief should be rarely invoked in sexual assault cases. In his opinion, the issue was consent or no consent and the jury, by its verdict, did not believe the respondent’s testimony.
IV. Analysis
13 In my opinion, the majority of the Court of Appeal was correct to find an “air of reality” to the defence of honest but mistaken belief. As well, it has long been established that a trial judge must charge the jury on every defence which has an “air of reality”, whether or not that defence is raised by the accused.
(1) Air of Reality
14 The principal question that arises where the defence of honest but mistaken belief is alleged is whether in all the circumstances of the case there is any reality to it. In R. v. Park, [1995] 2 S.C.R. 836, L’Heureux-Dubé J. wrote, at para. 20:
Although there is not, strictly speaking, a requirement that the evidence be corroborated, that evidence must amount to something more than a bare assertion. There must be some support for it in the circumstances. The search for support in the whole body of evidence or circumstances can complement any insufficiency in legal terms of the accused’s testimony. The presence of “independent” evidence supporting the accused’s testimony will only have the effect of improving the chances of the defence.
In R. v. Osolin, [1993] 4 S.C.R. 595, McLachlin J. stated at pp. 648-49:
. . . before any defence can be put to the jury, the evidence must provide a basis for that defence. This requirement is sometimes described by saying that there must be an “air of reality” to the defence. To put a defence to the jury where this “air of reality” is lacking on the evidence would be to risk confusing the jury and to invite verdicts not supported by the evidence.
...
In order to give an “air of reality” to the defence of honest but mistaken belief, there must be: (1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting.
The evidence of lack of consent in most cases is supplied by the complainant's testimony. To prove honest but mistaken belief, on the other hand, the accused typically testifies that he honestly believed that the complainant consented. Theoretically, such a belief could be asserted in every case, even where it is totally at odds with the evidence as to what happened. So it has been held that the bare assertion of the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief; the assertion must be “supported to some degree by other evidence or circumstances”: R. v. Bulmer, [1987] 1 S.C.R. 782, at p. 790. The support may come from the accused or from other sources....
...
[T]he accused’s mere assertion of his belief is not evidence of its honesty. The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person would have believed. But nevertheless it does require some support arising from the circumstances. A belief which is totally unsupported is not an honestly held belief. A person who honestly believes something is a person who has looked at the circumstances and has drawn an honest inference from them. Therefore, for a belief to be honest, there must be some support for it in the circumstances. The level of support need not be so great as would permit the belief to be characterized as a reasonable belief. But some support there must be.
15 I conclude from the foregoing that before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence. Here, the plausible evidence comes from the testimony of the complainant and the respondent and the surrounding circumstances of the alleged sexual assault. The respondent’s evidence amounted to more than a bare assertion of belief in consent. He described specific words and actions on the part of the complainant that led him to believe that she was consenting. This alone may be enough to raise the defence. However, there was more. The complainant’s evidence did not contradict that of the respondent, as she cannot remember what occurred after she went to her bedroom. In addition there was no evidence of violence, no evidence of a struggle and no evidence of force.
16 The parties’ testimony is usually the most important evidence in sexual assault cases. In Osolin, supra, there was debate whether, if the parties’ testimony were “diametrically opposed”, the defence of mistake should be put to the jury. In the present case, not only was the testimony not “diametrically opposed”, but even on a slightly stricter test, the parties’ stories may be “cobbled together” in an entirely coherent manner. In Park, supra, L’Heureux-Dubé J. stated at para. 25:
... the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the complainant’s evidence and some of the accused’s evidence to produce a sufficient basis for such a defence.... Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent?
17 The procedure outlined by L’Heureux-Dubé J. applies here in the following way. The accused testified that they had been drinking and engaged in intercourse, with the complainant’s consent. The complainant testified that she was drunk and has no memory of anything that happened after she went to her bedroom. She did not testify that she did not in fact consent, but was only able to say that because she and the accused were related, she would not have consented. The appellant Crown argued for a conviction based on, inter alia, the theory that as the complainant was intoxicated she was incapable of consenting.
18 The accused’s evidence of the complainant’s participatory actions, if believed, might lead a jury to conclude that he honestly believed she was consenting despite his being mistaken about her ability to legally consent because of intoxication. This meets the threshold of a plausible explanation of the facts and should have been put to the jury.
19 The absence of memory by the complainant as to what happened in the bedroom makes it easier to “cobble together” parts of both the accused and complainant’s evidence to reach a reasonable conclusion of honest but mistaken belief. Any number of things may have happened during the period in which she had no memory. The evidence of the accused combined with the lack of memory of the complainant and, as previously noted, the absence of violence, struggle or force, when taken together makes plausible and gives an air of reality to the defence of mistaken belief.
20 Passivity by the complainant may not be consent: see R. v. M. (M.L.), [1994] 2 S.C.R. 3. However, the absence of memory by the complainant has to be considered with the evidence of the accused that the complainant seemed to willingly participate. The jury would not need to believe much of the respondent’s testimony about what occurred in order to reasonably conclude that he had an honest but mistaken belief in consent. This is sufficient to justify charging the jury on that defence.
21 The defence of honest but mistaken belief is mandated by both common law and statute. My colleague, Justice McLachlin, in her reasons in this case, narrows the defence to where it practically ceases to exist. The trial judge’s role in evaluating the legal standard of “air of reality” as a question of law is a limited one. The strictures placed on the defence by my colleague would expand the role of the trial judge and deny the jury the ability to apply its wisdom to issues that arise in these cases by removing nearly all questions of fact from them.
22 In this appeal, it is the totality of the evidence that gives the defence an air of reality. The absence of resistance or violence is only one factor that must be considered alongside the accused’s evidence that the complainant did and said things that led him to believe she was consenting. I intended my reasons to conclude that the absence of resistance or violence alone could not raise the defence.
23 My colleague’s reasons state that I have asserted “that the complainant’s drunkenness and lack of memory raise the defence of honest but mistaken belief” (para. 95). These factors were cited merely because they leave the accused’s evidence that the complainant did and said things that led him to believe she was consenting uncontradicted. My colleague concludes that the complainant would not for personal reasons have consented. This, in view of the complainant’s failure to remember, is no evidence of her denying consent.
24 My colleague further posits that an accused could never have an honest but mistaken belief in consent where the complainant is incapable of consent because she is intoxicated. She states that “[s]uch lack of capacity would be obvious to all who see her, except the wilfully blind. This makes any suggestion of honest mistake as to consent implausible” (para. 73). With respect, this conclusion is incorrect, unless it means that the only time a person is legally incapable of giving consent is when they are intoxicated to the point of unconsciousness. The question of whether a particular complainant could inadvertently disguise her intoxication, say things or perform acts that raise an honest but mistaken belief in consent, is for the jury to determine taking into account all the factors in the case. The Court cannot make an a priori determination that honest but mistaken belief is impossible when the complainant is intoxicated.
25 My colleague suggests that there are only two possibilities in this case: “either the complainant would have vehemently refused sex, or she was unconscious and incapable of refusing it” (para. 91). With respect, this is a question for the jury to consider. There is a logical third alternative. The jury could have believed the accused’s testimony that the complainant appeared to consent, but also believed that the complainant was intoxicated to the point of legal incapability. If honest but mistaken belief as a defence is removed in those circumstances, the jury would have no option but to convict. The effect of McLachlin J.’s reasons would usurp the role of the jury when she states that “[t]here is no evidence to support a third scenario of ambiguity as to capacity or as to what was communicated. There is no evidence to indicate that while the complainant appeared to be consenting, she was not” (para. 94). It appears plain on the facts of this case that it was possible for the jury to do just that.
(2) Defence First Raised on Appeal
26 That the defence of honest but mistaken belief was not raised at the trial is not a bar to its being raised on appeal. The trial judge must charge the jury with respect to every defence which has an “air of reality”. See R. v. Lemky, [1996] 1 S.C.R. 757, per McLachlin J. at para. 12:
It is common ground that the trial judge must instruct the jury on any defence that on the evidence has “an air of reality”: R. v. Osolin, [1993] 4 S.C.R. 595. The threshold test is met when there is an evidentiary basis for the defence which, if believed, would allow a reasonable jury properly instructed to acquit. See R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Park, [1995] 2 S.C.R. 836.
Defence counsel’s decision not to raise the defence may have obscured the issue; however, the obligation remained with the trial judge.
27 This point is further strengthened by the wording of s. 265(4) of the Criminal Code, R.S.C., 1985, c. C-46 :
265. ...
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [Emphasis added.]
This section essentially codifies the “air of reality” test in relation to the defence of honest but mistaken belief: Osolin, supra, per Cory J. The use of the mandatory “shall instruct the jury” makes it clear that the defence must go forward whether raised by the accused or not.
28 An accused person is entitled at his or her trial to have all defences which arise on the facts considered by the court. See R. v. Bulmer, [1987] 1 S.C.R. 782, per McIntyre J., at p. 789: “[i]t is well settled law that in his charge the trial judge must put to the jury all defences that may arise upon the evidence, whether they have been raised by counsel for the defence or not.”
V. Conclusion
29 The ability to reconcile the evidence of both the accused and the complainant with an honest but mistaken belief in consent and the circumstances of the alleged offence mandates that the jury should have considered the defence. Section 273.2 of the Criminal Code was not raised at the trial or on the appeal. Those circumstances restrict this Court’s ability to consider the effect of that section. This is not a case where the only issue is consent or no consent. A new trial is required.
30 In the result, I would uphold the decision of Lieberman J.A. in the Court of Appeal, and dismiss the appeal.
The following are the reasons delivered by
31 L’Heureux-Dubé J. (dissenting) -- I agree entirely with McLachlin J.’s reasons and the result she reaches. In R. v. Park, [1995] 2 S.C.R. 836, I similarly advocated altering the traditional common law understanding of “lack of consent” as it relates to the mens rea in the offence of sexual assault. This required rejecting the customary focus on the complainant’s communication of refusal or rejection of the sexual touching in question in favour of an assessment of whether and how the accused ascertained that the complainant was consenting to such activity. The mens rea for sexual assault should, therefore, also be established where the accused is aware of, or reckless or wilfully blind to, an absence of communicated consent on the part of the complainant.
32 In that case, at para. 2, while concurring in the reasons for judgment and the result I reached, Lamer C.J., writing for a majority of the Court, expressed the following reservation about the section of my analysis where I had elaborated this new approach to consent:
I prefer to make no comment on this subject since it is not necessary to deal with these matters in deciding this appeal. As this Court did not have the benefit of any argument on the aspects discussed by my colleague in this section, I would prefer to reserve these matters for another time.
As McLachlin J. has now adopted this understanding of consent in her reasons in the present appeal, some elaboration of the general principles and rationale as articulated in Park, supra, is in order.
33 In Park, supra, after clarifying a number of difficulties which relate to the nature and application of the “air of reality” test to honest belief defences, I observed that these appear to flow from our approach to the mens rea of the offence of sexual assault in the common law. It is well understood that the mens rea of the offence of sexual assault requires that the accused intended to touch the complainant in a sexual manner and knew that the complainant was not consenting, or was reckless or wilfully blind to the fact. In application, these requirements have translated into an onus on the Crown to prove beyond a reasonable doubt that the accused was aware of, or reckless or wilfully blind to the complainant’s communication of non-consent.
34 In my view, the mens rea should also be established where the accused is shown to have been aware of or reckless or wilfully blind as to the fact that the complainant has not communicated consent to the activity in question. As I stated at para. 39 of the judgment:
In other words, the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no”, but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying “yes”.
35 This change to our traditional approach to consent is necessary if we are effectively to address the underlying concerns of the present offence of sexual assault. As society’s mores and attitudes as regards gender roles and relations have changed, the aim of this criminal offence has evolved from its original focus on the proprietary rights men once had over their wives and children and even the more recent emphasis on the physical harm caused by forced sexual activity to a complainant. As I indicated in Park, supra, at para. 42, today’s offence of sexual assault is founded on respect for women’s “inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in”.
36 On the basis of these considerations, I advocated a shift in our perspective on this legal concept, from consent as “the private mental state” of the complainant to consent as the communication of permission to engage in behaviour from which the accused otherwise has a legal obligation to refrain. This new approach was developed and elaborated by L. Vandervort, in “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1987-88), 2 C.J.W.L. 233, as I observed in Park, supra, and has been reviewed by my colleague McLachlin J. in her reasons in the present appeal. I note that this approach to consent in the offence of sexual assault continues to find favour in academic commentary on this issue. See H. M. Malm, “The Ontological Status of Consent and its Implications for the Law on Rape” (1996), 2 Legal Theory 147; A. Wertheimer, “Consent and Sexual Relations” (1996), 2 Legal Theory 89.
37 As I further explained in Park, supra, consideration of communication of consent has always implicitly informed our determination of whether an accused in a sexual assault case had the mens rea as regards the complainant’s lack of consent. In determining whether an accused had the requisite culpable state of mind, it is necessary for the trier of fact objectively to examine not only the verbal and behavioural indicators in the evidence of the complainant’s subjective state, but also the accused’s subjective perception thereof, in light of any relevant circumstances known to him at the time. Where an accused has demonstrated that he honestly, with some basis in the circumstances, misperceived these indicators, and therefore lacked the necessary “culpable mind”, the defence of honest but mistaken belief may arise.
38 The following passage from my reasons in Park, supra, at para. 44, represents the recommended manner in which to address the issues of consent and mistake of fact:
An accused cannot say that he believed the complainant to be consenting without pointing to the basis for that belief. As a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary. [Emphasis in original.]
39 Evaluating consent and mistaken belief in consent in terms of the complainant’s communication is essential if we are to bridge the damaging communication gap between men and women, to encourage men to ascertain whether their sexual partners are consenting, and, most importantly, to prevent sexual behaviour on the part of men which is driven by the biased views and stereotypes that women are consenting when passive or incapable of communicating and do not have a full right of control over what is done to and with their bodies. Sections 15 and 28 of the Canadian Charter of Rights and Freedoms have established that the law must neither give rise to nor perpetuate inequality between men and women. Contemporary social norms and beliefs as regards sexual behaviour and sexual assault are fortunately evolving to reflect this ideal. These provide ample grounds and a strong impetus for this Court to develop the common law approach to consent along the lines suggested above and as applied by my colleague to the case at bar.
40 When this approach to consent is applied in the present appeal, as my colleague McLachlin J. has demonstrated, the complainant either consented, or, as she testified, refused or was incapable of communicating permission or agreement to the activity in question. There is no evidentiary basis at all for ambiguous communication on the part of the complainant or external circumstances which could have influenced the perceptions of the accused. To put this defence to the jury would require assumptions about the behaviour of severely intoxicated women which have no demonstrated basis in reality and could potentially be seen as biased or stereotypical.
41 In a recent case before the Supreme Court of India, in recognition of the trier of fact’s propensity to base conclusions not on the evidence but on biased or st