R. v. Park

R. v. Park
Collection
Supreme Court Judgments
Date
1995-06-22
Report
[1995] 2 SCR 836
Case number
23876
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 23876
Decision Content
R. v. Park, [1995] 2 S.C.R. 836
Her Majesty The Queen Appellant
v.
Darryl Gordon Park Respondent
Indexed as: R. v. Park
File No.: 23876.
1994: December 7; 1995: June 22.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Sexual assault ‑‑ Defence of honest but mistaken belief in consent ‑‑ Trial judge refusing to put defence to jury ‑‑ Accused's conviction overturned on appeal ‑‑ Whether there was evidence to lend defence an "air of reality" ‑‑ Nature and proper application of "air of reality" test ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 265(4) .
The accused was charged with sexual assault. Two weeks before the incident, the complainant and the accused had dated for the first time. The accused testified that later, at her apartment, they became quite intimate, fondling one another's private parts and talking of sex and birth control, and that she masturbated him to ejaculation. She maintains that they only kissed and talked of birth control and about the fact that, as a born again Christian, she did not believe in premarital sex. On the day of the incident, the accused called the complainant early in the morning and she agreed that he could come over. He arrived shortly thereafter and she greeted him at the door with a kiss on the cheek, wearing only her bathrobe. The complainant claims that, a few minutes later, he drew her to him and pushed her onto the bed. She resisted actively but he was stronger. Feeling his weight atop her, she had a flashback to a previous traumatic experience and went into "shock". The next thing she remembered, he was pulling his penis out of her and ejaculating on her stomach. By contrast, the accused testified that she actively participated in the sexual activity and, when things began to get "hot", he prematurely ejaculated on her stomach. No intercourse took place. A medical report from the examination of the complainant indicated the presence of redness on the inner labia which could be consistent with either consensual or non‑consensual intercourse. At trial, the accused's defence was that the complainant consented to the sexual activity or, in the alternative, that he had an honest but mistaken belief that she was consenting. The trial judge refused to put the mistaken belief defence to the jury, finding there to be no air of reality to it, and concluding that the issue was simply one of "consent or no consent". The accused was convicted. On appeal, the majority of the Court of Appeal set aside the conviction and ordered a new trial, holding that the trial judge erred in not putting the mistaken belief defence to the jury.
Held: The appeal should be allowed and the conviction restored.
Per Lamer C.J. and La Forest, Gonthier, Cory and McLachlin JJ.: Subject to the following reservation, L'Heureux‑Dubé J.'s reasons were agreed with. No comment should be made on the interaction of consent and mistake of fact in a sexual assault situation since it is not necessary to deal with these matters in deciding this appeal.
Per L'Heureux‑Dubé J.: Before any defence can be left with a jury, it must have an "air of reality". The "air of reality" test is a legal threshold, not a factual one. The trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. He is not concerned with the weight of evidence or with assessments of credibility.
In sexual assault cases, where the accused asserts that the complainant actually consented, it is artificial to inquire further into whether he also expressed a belief that she was consenting. The absence or presence of an actual statement indicating a belief in consent is of no consequence in all but the most unusual of cases. Presuming that the accused is de facto asserting such a belief, the more fundamental question is whether that belief is an honest one, capable of supporting the defence of honest but mistaken belief in consent.
Essentially, for there to be an "air of reality" to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence. 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 presence of "independent" evidence supporting the accused's testimony will only have the effect of improving the chances of the defence. The judge's role is limited to ascertaining whether the accused has discharged the evidentiary burden imposed by s. 265(4) of the Criminal Code .
What is relevant to a possible defence of honest but mistaken belief is the account of the events that took place at the time of the sexual assault, as well as any additional relevant and admissible information explaining why the accused might have honestly interpreted those events at that time to be consistent with consent. In certain cases, evidence of prior sexual activity between the two parties may be relevant in this respect. An honest belief that the complainant would consent is, by itself, not a defence to sexual assault where the accused is aware of, or wilfully blind or reckless as to, lack of consent at the time of the sexual activity. Only where an accused entertains an honest belief that the complainant actually does consent does this mistake render the sexual assault non‑culpable. When the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent. When the complainant's and the accused's versions conflict materially or are diametrically opposed on this point, then the defence can be left with the jury if it is 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. If the versions cannot realistically be spliced in such a manner, then the issue really is purely one of credibility ‑‑ of consent or no consent ‑‑ and the defence should not be put to the jury.
There is no air of reality to a particular defence, and therefore no need to put it to the jury, where: (1) the totality of the evidence for the accused is incapable of amounting to the defence being sought; or (2) the totality of the evidence for the accused is clearly logically inconsistent with the totality of evidence which is not materially in dispute. These standards should be viewed realistically, and not evaluated according to purely speculative or hypothetical extremes. What is truly important to the "air of reality" test in respect of a particular defence is that the evidence said to provide some basis for the defence must actually relate to, and support, that particular defence. Evidence going to an ancillary issue or failing to address a clear and undisputed logical inconsistency in an accused's claim to the honest mistake defence will not, itself, be sufficient to lend that defence an air of reality.
The actus reus of sexual assault requires that the Crown demonstrate a touching of a sexual nature, combined with a lack of actual consent to that touching, while the mens rea is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching. However, in reinforcing the view that sexual activity is consensual in the absence of communicated non‑consent, the current common law approach to the mens rea of sexual assault may perpetuate social stereotypes that have historically victimized women and undermined their equal right to bodily integrity and human dignity. The primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in. The criminal law must be responsive to women's realities, rather than a vehicle for the perpetuation of historic repression and disadvantage. The common law governing the mens rea of sexual assault should be approached having regard to s. 15 of the Canadian Charter of Rights and Freedoms , and it should be accepted that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communicated. 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. Although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to believe that the complainant was consenting. If the accused is unable to point to evidence tending to show that the complainant's consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant's absence of consent.
The trial judge was correct in not putting the defence of mistake of fact to the jury. There was nothing in the totality of this evidence, coming from either the complainant or the accused, to lend any air of reality to the possibility that the accused may have held a mistaken belief as to her consent. Nor would it have been possible for a reasonable jury to splice together some of her evidence and some of his with respect to the encounter, and to settle upon a reasonably coherent set of facts that could support the defence of mistaken belief in consent. The dissimilarities between the alleged assault and the sexual activities that took place in the encounter two weeks earlier can only lead to the conclusion that the evidence of that encounter was neither relevant to, nor capable of supporting, an honest belief on the part of the accused that the complainant was consenting at the time of the assault. The factors listed by the Court of Appeal as lending an air of reality to that defence were all only capable, if anything, of supporting a belief on the part of the accused that the complainant would consent, not a belief that she did in fact consent. None of the factors relate in any realistic way to the events that actually took place at the time of the alleged sexual assault.
Per Sopinka J.: While many of L'Heureux-Dubé J.'s comments with respect to the defence of honest but mistaken belief in consent were agreed with, it is unnecessary and undesirable to attempt to define exhaustively the constituents of the defence in this case. It is a simpler task to delimit the absence of an air of reality than to define in law its constituent components. In this appeal, the appropriate question is whether there was some evidence that the accused honestly believed that the complainant consented to intercourse. The complainant's evidence was of no assistance to the accused as he testified that no intercourse took place. This is inconsistent with a belief in consent to intercourse.
Per Cory, Iacobucci and Major JJ.: The trial judge did not err in withholding from the jury the defence of honest but mistaken belief in consent because he was entitled to conclude that there was, in all the circumstances of the case, no air of reality to the defence. In effect, the accused denied that any intercourse occurred but, alternately, argues that if it did occur, he thought there was consent. In these circumstances, it makes no sense to apply the air of reality defence to such an inconsistent position. As well, the trial judge committed no error in ruling that evidence of previous sexual activity was inadmissible.
Cases Cited
By L'Heureux‑Dubé J.
Referred to: Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Reddick, [1991] 1 S.C.R. 1086; R. v. Guthrie (1985), 20 C.C.C. (3d) 73; R. v. White (1986), 24 C.C.C. (3d) 1; R. v. Livermore (1994), 18 O.R. (3d) 221; R. v. M. (M.L.), [1994] 2 S.C.R. 3; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Jobidon, [1991] 2 S.C.R. 714; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Daviault, [1994] 3 S.C.R. 63; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Lavallee, [1990] 1 S.C.R. 852.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15 .
Criminal Code, R.S.C., 1985, c. C‑46, s. 265(1) , (2) , (4) .
Authors Cited
Great Britain. Advisory Group on the Law of Rape. Report of the Advisory Group on the Law of Rape. London: HMSO, 1975.
Vandervort, Lucinda. "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987‑88), 2 C.J.W.L. 233.
Wiener, Robin D. "Shifting the Communication Burden: A Meaningful Consent Standard in Rape" (1983), 6 Harv. Women's L.J. 143.
APPEAL from a judgment of the Alberta Court of Appeal (1993), 145 A.R. 207, 55 W.A.C. 207, allowing the accused's appeal from his conviction by Waite J. on a charge of sexual assault, and directing a new trial. Appeal allowed and conviction restored.
Paul C. Bourque, for the appellant.
Alan S. Rudakoff, for the respondent.
The judgment of Lamer C.J. and La Forest, Gonthier, Cory and McLachlin JJ. was delivered by
1 Lamer C.J. -- I have read the reasons for judgment written by my colleague Justice L'Heureux‑Dubé and, for the reasons given by her, I agree that the Crown's appeal should be allowed and the conviction restored. I would like, however, to express one reservation.
2 My reservation concerns the "Mistake of Fact and Consent" section of the analysis by L'Heureux‑Dubé J., which deals with the interaction of consent and mistake of fact in a sexual assault situation. 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.
The following are the reasons delivered by
3 L'Heureux-Dubé J. -- The respondent was charged with sexual assault as a result of events that took place at the complainant's home early in the morning of November 25, 1991. At trial, his defence was that the complainant consented to the sexual activities engaged in or that, in the alternative, he held an honest but mistaken belief that she consented to those activities. The trial judge concluded that the facts of the case did not lend the mistaken belief defence any "air of reality", and therefore declined to put it to the jury. The respondent was convicted. On appeal, his conviction was overturned and a new trial ordered. The Crown appeals to this Court as of right on the question of both the nature and the proper application of the "air of reality" test to the mistake of fact defence in the context of a sexual assault.
I. Relevant Statutory Provisions
4 At the time of the offence, the following were the relevant provisions of the Criminal Code, R.S.C., 1985, c. C-46 :
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
...
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
...
(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.]
II. Facts and Judgments
5 In early November 1991, the complainant and the respondent met in a parking lot when the respondent helped her remove her car from an icy spot. He asked for her phone number. She agreed. Approximately one week later, on November 12, they went out on a date and subsequently returned to her place. He says that they became quite intimate, removed substantially all of their clothing, fondled one another's private parts, talked of sex and birth control, and that she masturbated him to ejaculation. She maintains that they only kissed, talked of birth control, and talked about the fact that, as a born again Christian, she did not believe in premarital sex. Nothing else happened and he left at around 9:45 p.m.
6 Thirteen days later, on November 25, the respondent, having driven all night from Winnipeg, called the complainant up at six in the morning from his cellular phone and asked if he could stop by. Although she had just gotten up for work, she assented since she thought he needed to talk. He arrived ten minutes later, having stopped to buy a condom at a nearby store. She greeted him at the door with a kiss on the cheek, clad only in her bathrobe. He entered and beckoned her to the couch and tried to kiss her. At this point, their stories diverge considerably.
7 According to her, she pulled away and, seeing the condom in his hand, asked if that was "why [he] came over here". Distraught, she went to her room to take her sleeping 2-year-old child off her bed and took her to another room to change the child's diapers. The respondent followed her. After she had finished, he beckoned the complainant into the bedroom. She followed, thinking that he wanted to "crash", since he had driven all night before arriving at her door. She began to look in her closet for clothes to wear to work when she turned around and saw that the respondent had taken his shirt off. She claims that he drew her to him and kissed her and then pushed her onto the bed. She resisted actively, both verbally and physically, but he was stronger. She described in considerable detail the assault. Feeling his weight atop her, she had a flashback to a previous traumatic experience and went into "shock". The next thing she remembered, he was pulling his penis out of her and ejaculating on her stomach. She fled to the bathroom, needing to vomit. He dressed and kissed her goodbye on the cheek as he left. The complainant did not go to work that day, but instead went directly to see her counsellor, who testified to the fact of her emotionally agitated state on that particular day.
8 By contrast, the respondent claims that they sat on her couch and kissed, and that he then asked to use the washroom. The complainant then took her sleeping child back to the child's bedroom, and the two of them entered the complainant's bedroom where they lay on the bed and began to kiss. She actively participated in the sexual activity. Her only resistance was that, when he pulled out the condom, she said "no, not yet". He therefore put the condom aside on the pillow. In his words, things then began to get "hot" and he prematurely ejaculated on her stomach. No intercourse took place. They talked for a short period of time. She got up and went to the bathroom. He dressed, kissed her goodbye and left.
9 At trial, the respondent asserted that the complainant consented to the sexual activity or, in the alternative, that he had an honest but mistaken belief that she was consenting. Both the complainant and the respondent testified. A report from the medical examination of the complainant was admitted into evidence in an agreed-upon statement of facts. That report indicated no physical injury, but noted the presence of redness on the inner labia which could be consistent with either consensual or non-consensual intercourse. The trial judge refused to put the mistaken belief defence to the jury, finding there to be no air of reality to the defence, and concluding that the issue was simply one of "consent or no consent". Because of his ruling on the mistaken belief defence, he also instructed the jury to disregard all evidence of any sexual activity between the complainant and the respondent prior to the alleged incident, since it was not relevant to any other issue in the trial. The respondent was convicted.
10 McClung J.A., for the majority of the Alberta Court of Appeal (1993), 145 A.R. 207, 55 W.A.C. 207, held the trial judge's failure to put the mistaken belief defence to the jury to be in error. He enumerated certain independent facts that, in his view, lent an air of reality to the defence of honest but mistaken belief in consent: the complainant's telephone overture to the respondent, the discussions of her use of birth control, and the fact that she met him with a kiss at 6:10 a.m. on November 25 wearing only her bathrobe. He also held the trial judge's instruction that the jury disregard the prior sexual activity to be in error, since it was relevant to the question of mistaken belief. McFadyen J.A. dissented on the basis that none of the factors pointed to by the majority lent any air of reality to the defence.
III. Analysis
11 The common law has long recognized that a trial judge need not put to the jury defences for which there is no real factual basis or evidentiary foundation. Courts must filter out irrelevant or specious defences, since their primary effect would not be to advance the quest for truth in the trial, but rather to confuse finders of fact and divert their attention from factual determinations that are pertinent to the issue of innocence or guilt. Since this Court's judgment in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, the requirement that such a foundation exist for a defence before it is put to the jury has generally come to be known as the "air of reality" test.
12 In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. noted that this test applies uniformly to all defences, and that its application to the defence of mistaken belief in consent was only a subset of this broad principle. In Osolin, moreover, this Court concluded that the requirement in s. 265(4) of the Criminal Code that there be "sufficient evidence" in order for a judge to put the defence of mistake to the jury was essentially a codification of the common law "air of reality" test as it relates to the mistake of fact defence. Although, or perhaps because, several separate judgments were written in Osolin on the air of reality test, certain questions regarding that test appear to persist. In an effort to dispel any remaining confusion, it is appropriate to examine briefly the purpose of the "air of reality" threshold before turning to several aspects of its application: the significance of the absence or presence of an actual allegation by the accused of mistaken belief; the extent to which the accused's version must be corroborated; and the effect on the trial if the accused and the complainant tell diametrically opposed stories. This discussion will be followed by observations that may assist trial judges in identifying circumstances in which there clearly is no air of reality to the honest mistake defence.
A. The Nature and Purpose of the "Air of Reality" Threshold
13 In Pappajohn, supra, at pp. 126-27, McIntyre J. explained the air of reality test in the following manner:
Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial judge must put a defence.
In R. v. Bulmer, [1987] 1 S.C.R. 782, he further elaborated upon this standard (at p. 790):
There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case. If that mere assertion were sufficient to require a trial judge to put the "mistake of fact" defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require the defence to be put. It must be remembered that at this stage of the proceedings the trial judge is not in any way concerned with the question of guilt or innocence. He is not concerned with the weight of evidence or with the credibility of evidence. The question he must answer is this. In all the circumstances of the case, is there any reality in the defence? To answer this question he must consider all the evidence, all the circumstances. [Emphasis added.]
The requirement that the trial judge not enter into assessments of credibility or weighing of evidence is an important factor in the application of this test. The test is the means by which a judge demarcates the limits of the jury's fact-finding responsibilities. A jury must not be invited to speculate on issues that are not realistically before it:
The term "air of reality" simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury. This is no more than an example of the basic division of tasks between judge and jury. [Emphasis added.]
(Osolin, supra, at p. 682, per Cory J.)
This underlying rationale must be kept first and foremost in the minds of trial judges as they seek to apply the "air of reality" test. It is a legal threshold, not a factual one. It is an error of law for a judge not to put a defence to the jury where an air of reality to that defence exists and it is an error of law to put a defence to a jury where no such air of reality exists. This line can sometimes be a fine one, however, for although we urge trial judges not to descend into the arena of facts, we nonetheless require that they consider nothing less than the "totality of the circumstances" in deciding whether an air of reality exists to found a particular defence. These seemingly conflicting requirements can invite analysis that is at best imprecise and at worst reflective of little more than a judicial "gut feeling". Although this matter will be revisited shortly, it is first important to clear up several misconceptions about the application of the "air of reality" test.
B. Application of the "Air of Reality" Threshold
1. Assertion of an Honest Belief in Consent
14 Some have interpreted this Court's past jurisprudence as suggesting that an accused must actually allege a "belief" in consent, as opposed to asserting the presence of consent itself, in order for there to be a basis for the honest but mistaken belief defence. Both parties to the present appeal, in fact, devote significant argument to the question of whether the accused actually asserted such a belief or whether his failure to assert it precludes him from claiming that defence. Frankly, they are chasing a red herring.
15 The defence of mistake of fact was described in Pappajohn, supra, at p. 148, by Dickson J. (dissenting in the result):
Mistake is a defence... where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of the offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts. [Emphasis added.]
Thus, for instance, if a hunter shoots what he believes to be a deer and subsequently discovers that he has shot a man, then he will likely rely on the defence of mistake of fact to claim that he has acted innocently as a result of a mistaken perception. In the vast majority of cases, one might seriously doubt that there is an air of reality to the defence of mistake of fact if the accused fails even to assert any belief that the man was a deer. In such circumstances, the mistake of fact defence, for all intents and purposes, generally requires the accused to assert a belief or misperception relating to an essential element of the actus reus, the existence of which is generally not otherwise in dispute, in order to imbue that defence with an air of reality.
16 Transferring this practical consequence to the context of sexual assault is more problematic, however. In the context of sexual assault, proof of the actus reus includes proof of the fact that the complainant was not, in fact, consenting. By the very nature of sexual assault, however, the issue of actual consent is almost always materially in dispute. For the accused to assert a belief which he acknowledges to be mistaken (i.e., a misperception), he would essentially have to assert a belief that implicitly concedes the actus reus of the offence -- i.e., the non-consent. It is inappropriate to suggest that an accused should have to assist the Crown in proving the actus reus of the offence, by admitting that "perhaps he was mistaken about her consent", in order to rely on the mistaken belief defence. Given that consent is, itself, a mental state experienced only by the complainant, an accused's assertion that the complainant consented must mean that he in fact believed she was consenting (see Lamer J., concurring, in Bulmer, supra, at p. 799). The distinction between asserting a belief in consent and asserting consent, itself, is therefore both artificial and potentially misleading. Assault differs importantly from most other Code offences in its interaction with the mistake of fact defence. Under most other offences, mistake of fact will primarily arise in contexts in which the actus reus of the offence is beyond dispute. Assaults raise a unique problem in that the mental state of another person (i.e., consent or lack thereof) is an essential element that is relevant to both the actus reus and the mens rea of the offence -- an element which almost invariably is materially in dispute.
17 McIntyre J. made it clear in Bulmer, supra, at pp. 790-91, that the absence or presence of an actual statement by the accused alleging mistaken belief is of limited significance to the determination of whether or not there exists any air of reality to that defence:
The question he must answer is this. In all the circumstances of this case, is there any reality in the defence? To answer this question, he must consider all the evidence, all the circumstances. The statement of the accused alleging a mistaken belief will be a factor but will not by itself be decisive, and even in its total absence, other circumstances might dictate the putting of the defence. [Emphasis added.]
I must respectfully go even further. Where the accused asserts that the complainant actually consented, then it is artificial to inquire further into whether he also expressed a belief that she was consenting. The absence or presence of an actual statement indicating a belief in consent is of no consequence in all but the most unusual of cases. Presuming that the accused is de facto asserting such a belief, the more fundamental question is whether that belief is an honest belief, capable of supporting the defence of honest but mistaken belief in consent (see Osolin, supra, at p. 649, per McLachlin J.). It is to this question that we must now turn.
2. The "Corroboration" Requirement
18 Independent corroboration implies objectivity and reliability. Where there is "independent" evidence, particularly real evidence, corroborating an accused's testimony with respect to a particular defence, then a court can generally conclude that, as a matter of law, there is an "air of reality" to that defence. As a purely practical matter, courts have a more difficult time in deciding what to do in circumstances where there is an absence of "independent" corroborative evidence. Sexual assault, by virtue of the fact that it is often not witnessed by anyone other than the complainant and the accused and by virtue of the fact that it does not require proof of visible physical injury to the complainant, raises special problems in this respect.
19 In Pappajohn, supra, at p. 133, McIntyre J. made the following observation about the circumstances in which an "air of reality" would exist for the defence of mistaken belief of consent:
To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality. [Emphasis added.]
He subsequently explained what he had meant by this statement, in Bulmer, supra, at p. 790:
These words appear, on occasion, to have been misunderstood, but I do not withdraw them. There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case.... The question [the trial judge] must answer is this. In all the circumstances of this case, is there any reality in the defence? To answer this question, he must consider all the evidence, all the circumstances.
More recently in Osolin, supra, at pp. 686-87, Cory J. reiterated this point:
There is no requirement that there be evidence independent of the accused in order to have the defence put to the jury. However, the mere assertion by the accused that "I believed she was consenting" will not be sufficient. What is required is that the defence of mistaken belief be supported by evidence beyond the mere assertion of a mistaken belief....
... The requisite evidence may come from the detailed testimony of the accused alone, on this issue or from the testimony of the accused coupled with evidence from other sources. For example, the complainant's testimony may supply the requisite evidence. [Emphasis added.]
McLachlin J.'s remarks in Osolin on this issue (at pp. 649-50) are equally apposite:
. . . the 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.... A person who commits a sexual assault without some support in the circumstances for inferring the consent of the complainant has, at very least, been wilfully blind as to consent. [Emphasis added.]
Sopinka J. preferred, at pp. 654-55, to characterize the "air of reality" test more simply, as an ordinary evidentiary burden on an accused to adduce sufficient evidence to justify a defence being put to a jury. In many ways, he is correct. I think, however, that the unique social and legal context of sexual assault, including the uncommon frequency with which the mistake of fact defence is raised, make it necessary for this Court to elaborate somewhat on that standard.
20 Essentially, for there to be an "air of reality" to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence. 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. The judge's role is limited to ascertaining whether the accused has discharged the evidentiary burden imposed by s. 265(4) of the Code.
21 As a corollary, in the absence of some other evidence supporting such a defence, it is difficult to imagine situations in which there will be sufficient evidence to put the defence of mistaken belief to the jury where an accused does not testify (see R. v. Reddick, [1991] 1 S.C.R. 1086). Finally, for practical and policy reasons which shall be discussed below, courts must be wary of being too ready to put the mistaken belief defence to the jury. We must recall that it is the rare exception rather than the general rule that a sexual assault will have been committed by accident. As McLachlin J. observed in Osolin, supra, at p. 648, the defence of mistake of fact has only really received special attention in the context of sexual assault trials because of the frequency with which that defence is asserted without evidentiary foundation.
3. Diametrically Opposed Stories
22 It is true that in cases where the defence of honest but mistaken belief is not put to the jury, there is often a considerable divergence between the evidence of the accused and that of the complainant (Pappajohn, supra; R. v. Guthrie (1985), 20 C.C.C. (3d) 73 (Ont. C.A.); R. v. White (1986), 24 C.C.C. (3d) 1 (B.C.C.A.); R. v. Osolin, supra; and R. v. Livermore (1994), 18 O.R. (3d) 221 (C.A.)). The significance of diametrically opposing stories is often misunderstood in two respects, however.
23 First, it is important to recall that the two individuals' stories are only relevant to guilt or innocence of sexual assault in so far as they relate in some way to the circumstances affecting the parties at the time of the alleged assault. Beyond evidence such as the location and time of the alleged assault and the conduct of the two parties at that time, this includes relevant and admissible background facts which explain how the accused could have honestly interpreted the complainant's conduct at the time of the alleged assault to mean that she was consenting. For instance, this Court has recognized that passivity may express lack of consent (R. v. M. (M.L.), [1994] 2 S.C.R. 3). Taken together with passive behaviour by the complainant, earlier acts, gestures or incidents may in certain cases colour the accused's perception of the complainant's behaviour, and serve as relevant evidence in assessing the existence or air of reality of an honest but mistaken belief in actual consent. Those acts and gestures may form part of a broader context or continuum which is necessary to understand the accused's honest per