R. v. Ewanchuk

R. v. Ewanchuk
Collection
Supreme Court Judgments
Date
1999-02-25
Report
[1999] 1 SCR 330
Case number
26493
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 26493
Decision Content
R. v. Ewanchuk, [1999] 1 S.C.R. 330
Her Majesty The Queen Appellant
v.
Steve Brian Ewanchuk Respondent
and
The Attorney General of Canada,
Women’s Legal Education and Action Fund (“LEAF”),
Disabled Women’s Network Canada (“DAWN Canada”)
and Sexual Assault Centre of Edmonton Interveners
Indexed as: R. v. Ewanchuk
File No.: 26493.
1998: October 14; 1999: February 25.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Sexual assault ‑‑ Consent ‑‑ Nature of consent ‑‑ Accused persistently engaging complainant in a series of progressively more intimate sexual advances ‑‑ Complainant clearly saying no to each advance ‑‑ Complainant fearful and accused aware of her fear ‑‑ Whether a sexual assault occurred ‑‑ Whether defence of “implied consent” exists in Canadian law ‑‑ Whether trial judge erred in applying that defence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(1) , (2) , (3) , 273.1 , 273.2 , 686(4) .
The complainant, a 17‑year‑old woman, was interviewed by the accused for a job in his van. She left the van door open as she was hesitant about discussing the job offer in his vehicle. The interview was conducted in a polite, business‑like fashion. After the interview, the accused invited the complainant to see some of his work which was in the trailer behind the van. The complainant purposely left the trailer door open but the accused closed it in a way which made the complainant think that he had locked it. There was no evidence whether the door was actually locked. The complainant stated that she became frightened at this point. The accused initiated a number of incidents involving touching, each progressively more intimate than the previous, notwithstanding the fact that the complainant plainly said “no” on each occasion. He stopped his advances on each occasion when she said “no” but persisted shortly after with an even more serious advance. Any compliance by the complainant was done out of fear and the conversation that occurred between them clearly indicated that the accused knew that the complainant was afraid and certainly not a willing participant. The trial judge acquitted the accused of sexual assault relying on the defence of implied consent and the Court of Appeal upheld that acquittal. At issue here are whether the trial judge erred in his understanding of consent in sexual assault and whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.
Held: The appeal should be allowed.
Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: If the trial judge misdirected himself as to the legal meaning or definition of consent, then his conclusion is one of law, and is reviewable. It properly falls to this Court to determine whether the trial judge erred in his understanding of consent in sexual assault, and to determine whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his behaviour. The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
The trier of fact may only come to one of two conclusions: the complainant either consented or did not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. No defence of implied consent to sexual assault exists in Canadian law. Here, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”. This conclusion was an error.
To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non‑consent, circumstances may arise which call into question what factors prompted her apparent consent. Section 265(3) of the Criminal Code enumerates a series of conditions ‑‑ including submission by reason of force, fear, threats, fraud or the exercise of authority ‑‑ under which the law will deem an absence of consent in assault cases, notwithstanding the complainant’s ostensible consent or participation. In a situation where the trier of fact finds that the complainant did not want to be touched sexually and made her decision to permit or participate in the sexual assault activity as a result of an honestly held fear, the law deems an absence of consent and the third component of the actus reus of sexual assault is established. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective. If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea.
The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.
The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused. The accused need not testify in order to raise the issue. Support for the defence may stem from any of the evidence before the Court, including the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
Consent is an integral component of the mens rea, but considered from the perspective of the accused. In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.
There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis‑à‑vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus “consent” means that the complainant in her mind wanted the sexual touching to take place. In the context of mens rea -- specifically for the purposes of the honest but mistaken belief in consent -- “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. The two parts of the analysis must be kept separate.
Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Criminal Code .
The accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence. Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2 . If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re‑established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.
Here, the accused knew that the complainant was not consenting before each encounter. The trial judge ought to have considered whether anything occurred between the communication of non‑consent and the subsequent sexual touching which the accused could honestly have believed constituted consent. The trial record conclusively establishes that the accused’s persistent and increasingly serious advances constituted a sexual assault for which he had no defence. But for his errors of law, the trial judge would necessarily have found the accused guilty. Since a new trial would not be in the interests of justice, this Court can properly exercise its discretion under s. 686(4) of the Code and enter a conviction.
Whether the accused took reasonable steps to ascertain that the complainant was consenting is a question of fact to be determined by the trier of fact only after the air of reality test has been met. Given the way the trial and appeal were argued, s. 273.2 (b) did not have to be considered.
Per L’Heureux‑Dubé and Gonthier JJ.: Agreement was expressed generally with the reasons of Major J. on most issues.
Canada is a party to the Convention on the Elimination of All Forms of Discrimination against Women, which requires respect for and observance of the human rights of women. Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights. These human rights are protected by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and their violation constitutes an offence under the assault provisions of s. 265 and under the more specific sexual assault provisions of ss. 271 , 272 and 273 of the Criminal Code .
This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her. The application of s. 265(3) requires an entirely subjective test. As irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.
The question of implied consent should not have arisen. The trial judge’s conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid. This error does not derive from the findings of fact but from mythical assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.
The majority of the Court of Appeal also relied on inappropriate myths and stereotypes. Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.
The findings necessary to support a verdict of guilty on the charge of sexual assault were made. In particular, there was no evidence that would give an air of reality to a defence of honest but mistaken belief in consent for any of the sexual activity which took place in this case. Section 273.2 (b) precludes an accused from raising that defence if he did not take reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. The position that the nature of the defence of honest but mistaken belief does not need to be based on reasonable grounds as long as it is honestly held has been modified by the enactment of s. 273.2 (b), which introduced the “reasonable steps” requirement.
Finally, on the facts as found at trial, s. 273.1(2) (d) also applies to this case and could not be ignored by the trial judge.
Per McLachlin J.: The reasons of Major J. and the finding of L’Heureux-Dubé J. that stereotypical assumptions lay at the heart of this case were agreed with. These stereotypical assumptions no longer find a place in Canadian law.
Cases Cited
By Major J.
Referred to: Belyea v. The King, [1932] S.C.R. 279; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Jensen (1996), 106 C.C.C. (3d) 430, aff’d [1997] 1 S.C.R. 304; R. v. Park, [1995] 2 S.C.R. 836; Saint‑Laurent v. Hétu, [1994] R.J.Q. 69; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Creighton, [1993] 3 S.C.R. 3; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. M. (M.L.), [1994] 2 S.C.R. 3; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Cassidy, [1989] 2 S.C.R. 345.
By L’Heureux‑Dubé J.
Distinguished: Pappajohn v. The Queen, [1980] 2 S.C.R. 120; referred to: R. v. Osolin, [1993] 4 S.C.R. 595; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Park, [1995] 2 S.C.R. 836; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Daigle, [1998] 1 S.C.R. 1220.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 15 .
Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S.1982 No. 31.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(1) , (2) , (3) , 271 , 272 , 273 , 273.1 [ad. 1992, c. 38, s. 1], 273.2 [ad. idem], 686(4).
Authors Cited
Andrias, Richard T. “Rape Myths: A persistent problem in defining and prosecuting rape” (1992), 7 Crimimal Justice 2.
Archard, David. Sexual Consent. Boulder, Colo.: Westview Press, 1998.
Blackstone, William, Sir. Commentaries on the Laws of England, 4th ed., Book III. Oxford: Clarendon Press, 1770.
Boyle, Christine L. M. Sexual Assault. Toronto: Carswell, 1984.
Brett, Nathan. “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69.
Burt, Martha R. “Rape Myths and Acquaintance Rape”. In Andrea Parrot and Laurie Bechhofer, eds., Acquaintance Rape: The Hidden Crime. New York: Wiley, 1991, 26.
Canada. Department of Justice. Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System. Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action. Ottawa: The Group, 1992.
Canada. Statistics Canada. “The Violence Against Women Survey”, The Daily, catalogue No. 11-001E, November 18, 1993.
Cook, Rebecca J. “Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women” (1990), 30 Va. J. Int’l L. 643.
Estrich, Susan. “Rape” (1986), 95 Yale L.J. 1087.
MacKinnon, Catharine A. Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press, 1989.
McInnes, J., and Christine Boyle. “Judging Sexual Assault Law Against a Standard of Equality” (1995), 29 U.B.C. L. Rev. 341.
Naffine, Ngaire. “Possession: Erotic Love in the Law of Rape” (1994), 57 Mod. L. Rev. 10.
Renner, K. Edward, Christine Alksnis and Laura Park. “The Standard of Social Justice as a Research Process” (1997), 38 Can. Psychology 91.
Sheehy, Elizabeth A. “Canadian Judges and the Law of Rape: Should the Charter Insulate Bias?” (1989), 21 Ottawa L. Rev. 741.
Stuart, Don. Annotation on R. v. Ewanchuk (1998), 13 C.R. (5th) 330.
Stuart, Don. Canadian Criminal Law, 3rd ed. Scarborough, Ont.: Carswell, 1995.
United Nations. General Assembly. Committee on the Elimination of Discrimination against Women, Eleventh Session, 1992, General Recommendation No. 19, G.A. Res. 34/180, U.N. Doc. A/47/48 (1979).
United Nations. General Assembly. Declaration on the Elimination of Violence against Women, G.A. Res. 48/104, U.N. Doc. A/48/49 (1993).
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens, 1983.
Wilson, Bertha. “Will Women Judges Really Make a Difference?” (1990), 28 Osgoode Hall L.J. 507.
APPEAL from a judgment of the Alberta Court of Appeal (1998), 57 Alta. L.R. (3d) 235, 13 C.R. (5th) 324, [1998] A.J. No. 150 (QL), dismissing an appeal from acquittal by Moore J. Appeal allowed.
Bart Rosborough, for the appellant.
Peter J. Royal, Q.C., for the respondent.
Beverly Wilton and Lisa Futerman, for the intervener the Attorney General of Canada.
Diane Oleskiw and Ritu Khullar, for the interveners the Women’s Legal Education and Action Fund and the Disabled Women’s Network Canada.
Paul L. Moreau, for the intervener the Sexual Assault Centre of Edmonton.
The judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
//Major J.//
1 Major J. -- In the present appeal the accused was acquitted of sexual assault. The trial judge relied on the defence of implied consent. This was a mistake of law as no such defence is available in assault cases in Canada. This mistake of law is reviewable by appellate courts, and for the reasons that follow the appeal is allowed.
I. Facts
2 The complainant was a 17-year-old woman living in the city of Edmonton. She met the accused respondent Ewanchuk on the afternoon of June 2, 1994, while walking through the parking lot of the Heritage Shopping Mall with her roommate. The accused, driving a red van towing a trailer, approached the two young women. He struck up a conversation with them. He related that he was in the custom wood-working business and explained that he displayed his work at retail booths in several shopping malls. He said that he was looking for staff to attend his displays, and asked whether the young women were looking for work. The complainant’s friend answered that they were, at which point the accused asked to interview her friend privately. She declined, but spoke with the accused beside his van for some period of time about the sort of work he required, and eventually exchanged telephone numbers with the accused.
3 The following morning the accused telephoned the apartment where the complainant and her friend resided with their boyfriends. The complainant answered the phone. She told the accused that her friend was still asleep. When he learned this, the accused asked the complainant if she was interested in a job. She indicated that she was, and they met a short time later, again in the Heritage Mall parking lot. At the accused’s suggestion, the interview took place in his van. In the words of the complainant, a “very business-like, polite” conversation took place. Some time later, the complainant asked if she could smoke a cigarette, and the accused suggested that they move outside since he was allergic to cigarette smoke. Once outside the van, he asked the complainant if she would like to see some of his work, which was kept inside the trailer attached to his van, and she indicated that she would.
4 The complainant entered the trailer, purposely leaving the door open behind her. The accused followed her in, and closed the door in a way which made the complainant think that he had locked it. There is no evidence whether the door was actually locked, but the complainant stated that she became frightened at this point. Once inside the trailer, the complainant and the accused sat down side-by-side on the floor of the trailer. They spoke and looked through a portfolio of his work. This lasted 10 to 15 minutes, after which the conversation turned to more personal matters.
5 During the time in the trailer the accused was quite tactile with the complainant, touching her hand, arms and shoulder as he spoke. At some point the accused said that he was feeling tense and asked the complainant to give him a massage. The complainant complied, massaging the accused’s shoulders for a few minutes. After she stopped, he asked her to move in front of him so that he could massage her, which she did. The accused then massaged the complainant’s shoulders and arms while they continued talking. During this mutual massaging the accused repeatedly told the complainant to relax, and that she should not be afraid. As the massage progressed, the accused attempted to initiate more intimate contact. The complainant stated that, “he started to try to massage around my stomach, and he brought his hands up around -- or underneath my breasts, and he started to get quite close up there, so I used my elbows to push in between, and I said, No”.
6 The accused stopped immediately, but shortly thereafter resumed non-sexual massaging, to which the complainant also said, “No”. The accused again stopped, and said, “See, I’m a nice guy. It’s okay”.
7 The accused then asked the complainant to turn and face him. She did so, and he began massaging her feet. His touching progressed from her feet up to her inner thigh and pelvic area. The complainant did not want the accused to touch her in this way, but said nothing as she said she was afraid that any resistance would prompt the accused to become violent. Although the accused never used or threatened any force, the complainant testified that she did not want to “egg [him] on”. As the contact progressed, the accused laid himself heavily on top of the complainant and began grinding his pelvic area against hers. The complainant testified that the accused asserted, “that he could get me so horny so that I would want it so bad, and he wouldn’t give it to me because he had self-control”.
8 The complainant did not move or reciprocate the contact. The accused asked her to put her hands across his back, but she did not; instead she lay “bone straight”. After less than a minute of this the complainant asked the accused to stop. “I said, Just please stop. And so he stopped”. The accused again told the complainant not to be afraid, and asked her if she trusted that he wouldn’t hurt her. In her words, the complainant said, “Yes, I trust that you won’t hurt me”. On the stand she stated that she was afraid throughout, and only responded to the accused in this way because she was fearful that a negative answer would provoke him to use force.
9 After this brief exchange, the accused went to hug the complainant and, as he did so, he laid on top of her again, continuing the pelvic grinding. He also began moving his hands on the complainant’s inner thigh, inside her shorts, for a short time. While still on top of her the accused began to fumble with his shorts and took out his penis. At this point the complainant again asked the accused to desist, saying, “No, stop”.
10 Again, the accused stopped immediately, got off the complainant, smiled at her and said something to the effect of, “It’s okay. See, I’m a nice guy, I stopped”. At this point the accused again hugged the complainant lightly before opening up his wallet and removing a $100 bill, which he gave to the complainant. She testified that the accused said that the $100 was for the massage and that he told her not to tell anyone about it. He made some reference to another female employee with whom he also had a very close and friendly relationship, and said that he hoped to get together with the complainant again.
11 Shortly after the exchange of the money the complainant said that she had to go. The accused opened the door and the complainant stepped out. Some further conversation ensued outside the trailer before the complainant finally left and walked home. On her return home the complainant was emotionally distraught and contacted the police.
12 At some point during the encounter the accused provided the complainant with a brochure describing his woodwork and gave her his name and address, which she wrote on the brochure. The investigating officer used this information to locate the accused at his home, where he was arrested. He was subsequently charged with sexual assault and tried before a judge sitting alone.
13 The accused did not testify, leaving only the complainant’s evidence as to what took place between them. The trial judge found her to be a credible witness and her version of events was not contradicted or disputed. In cross-examination the complainant testified that, although she was extremely afraid throughout the encounter, she had done everything possible to project a confident demeanour, in the belief that this would improve her chances of avoiding a violent assault. The following passage is illustrative of her evidence:
Q You didn’t want to show any discomfort, right?
A No.
Q Okay. In fact, you wanted to project the picture that you were quite happy to be with him and everything was fine, right?
A Not that I was happy, but that I was comfortable.
Q Comfortable, all right. And relaxed?
A Yes.
Q And you did your best to do that, right?
A Yes.
14 Later in cross-examination, counsel for the accused again asked the complainant about the image she sought to convey to the complainant by her behaviour:
Q And you wanted to make sure that he didn’t sense any fear on your part, right?
A Yes.
II. Judicial History
A. Court of Queen’s Bench
15 The trial judge made a number of findings of fact in his oral judgment. He found that the complainant was a credible witness. He found as facts: that in her mind she had not consented to any of the sexual touching which took place; that she had been fearful throughout the encounter; that she didn’t want the accused to know she was afraid; and that she had actively projected a relaxed and unafraid visage. He concluded that the failure of the complainant to communicate her fear, including her active efforts to the contrary, rendered her subjective feelings irrelevant.
16 The trial judge then considered the question of whether the accused had raised the defence of honest but mistaken belief in consent, and concluded that he had not. The trial judge characterized the defence position as being a failure by the Crown to discharge its onus of proving “beyond a reasonable doubt that there was an absence of consent”. That is, he took the defence to be asserting that the Crown had failed to prove one of the components of the actus reus of the offence. This led the trial judge to characterize the defence as one of “implied consent”. In so doing he concluded that the complainant’s conduct was such that it could be objectively construed as constituting consent to sexual touching of the type performed by the accused.
17 The trial judge treated consent as a question of the complainant’s behaviour in the encounter. As a result of that conclusion he found that the defence of honest but mistaken belief in consent had no application since the accused made no claims as to his mental state. On the totality of the evidence, provided solely by the Crown’s witnesses, the trial judge concluded that the Crown had not proven the absence of consent beyond a reasonable doubt and acquitted the accused.
B. Alberta Court of Appeal (1998), 57 Alta. L.R. (3d) 235
18 Each of the three justices of the Court of Appeal issued separate reasons. McClung and Foisy JJ.A. both dismissed the appeal on the basis that it was a fact-driven acquittal from which the Crown could not properly appeal. In addition, McClung J.A. concluded that the Crown had failed to prove that the accused possessed the requisite criminal intent. He found that the Crown had failed to prove beyond a reasonable doubt that the accused had intended to commit an assault upon the complainant.
19 Fraser C.J. dissented. She found that the trial judge erred in a number of ways. Specifically, she found that:
-- The trial judge erred in his interpretation of the term “consent” as that term is applied to the offence of sexual assault.
-- There is no defence of “implied consent”, independent of the provisions of ss. 273.1 and 273.2 of the Criminal Code .
-- It was an error to employ an objective test to determine whether a complainant’s “consent” was induced by fear.
-- The trial judge erred in the legal effect he ascribed:
to the complainant’s silence when subjected to sexual contact by the respondent;
to the complainant’s non-disclosure of her fear when subjected to sexual contact by the respondent;
to the complainant’s expressed lack of agreement to sexual contact;
to the fact that there was no basis for a defence of “implied consent” or “consent by conduct”;
to the fact that there was no consent to sexual activity.
-- The defence of mistake of fact had no application to the issue of ‘consent’ in this case.
-- The trial judge erred when he failed to consider whether the respondent had been wilfully blind or reckless as to whether the complainant consented.
20 Fraser C.J. held that the only defence available to the accused was that of honest but mistaken belief in consent, and concluded that this defence could not be sustained on the facts as found. Accordingly, she would have allowed the appeal and substituted a verdict of guilty.
III. Analysis
A. Appealable Questions of Law
21 The majority of the Court of Appeal dismissed the appeal on the ground that the Crown raised no question of law but sought to overturn the trial judge’s finding of fact that reasonable doubt existed as to the presence or absence of consent. If the trial judge misdirected himself as to the legal meaning or definition of consent, then his conclusion is one of law, and is reviewable. See Belyea v. The King, [1932] S.C.R. 279, per Anglin C.J., at p. 296:
The right of appeal by the Attorney-General, conferred by [the Criminal Code ] is, no doubt, confined to “questions of law”. . . . But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury . . . to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law, -- especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge. [Emphasis added.]
22 It properly falls to this Court to determine whether the trial judge erred in his understanding of consent in sexual assault, and to determine whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.
B. The Components of Sexual Assault
23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
(1) Actus Reus
24 The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46 . The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S. (P.L.), [1991] 1 S.C.R. 909. Section 265 provides that:
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;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(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.
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.
26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.
28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
(a) “Implied Consent”
31 Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as “implied consent”. It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
(b) Application to the Present Case
32 In this case, the trial judge accepted the evidence of the complainant that she did not consent. That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent. As a result, he disregarded his previous finding that all the accused’s sexual touching was unwanted. Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.
33 As previously mentioned, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”. This conclusion was an error. See D. Stuart, Annotation on R. v. Ewanchuk (1998), 13 C.R. (5th) 330, where the author points out that consent is a matter of the state of mind of the complainant while belie