The (Actus Reus) Issue Criminal Code: Ss. 271-273.1
Sexual assault
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
(2) [Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 10]
R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19.
Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145.
Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
R. v. Chase [1987] Sexual assault does not require genital contact.
2 S.C.R. 293
|
FACTS
|
Man came into neighbour’s house, fondled her breasts (he grabbed her breasts) etc… and tried to get her to sleep with him. When she fought back, he said that he was going to tell everybody that she raped him. He was convicted for sexual assault and the New Brunswick C.A. changed the conviction to common assault. Court of Appeal reduced the sentence from 8 months to 6.
|
ISSUE
|
What does sexual assault entail?
|
HELD
|
Crown’s appeal allowed. Original sexual assault conviction restored.
|
RATIO
|
The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”
|
NOTES
| -
Incidentally, the Supreme Court restored the trial judgment but upheld the reduced 6-month sentence.
-
Court of Appeal said that this crime would have been an indecent assault back when there was a crime of rape.
-
The N.B. C.A. “kiss-stealing” analogy seems inappropriate given the facts of this case. But they were concerned with opening the flood gates, i.e., giving sexual assault too wide a scope.
-
Professor Sklar indicates that indecent assault should have been left in the Code so that distinctions could be made, especially in terms of sentencing. Should be introduce a scale of seriousness? Does some of the conduct coming under sexual assault really warrant the 10-year maximum under sexual assault?
-
Maximum penalties are a symbolic notion and connote the seriousness of a given crime.
-
Mens Rea discussion (fourth page of judgment): objective form of mens rea; no need for there to be a subjective purpose of sexual gratification. The latter is just a factor. Place is also a factor. All other circumstances surrounding the incident are factors. Look at the whole picture.
-
If we needed the subjective purpose of sexual gratification as part of mens rea, this would be a crime of specific, rather than general, intent and intoxication could be a defence. Do we want this?
|
NB: for Barron, infra, we are only interested in the court’s discussion of the “unlawful” act issue, and not the discussion of the “criminal negligence” issue.
R. v. Barron (1984) The deceased impliedly consented to being pushed.
39 C.R. (3d) 379 (Ont. H.C.)
|
FACTS
|
Barron, a 16-year-old teenager, threw a party at his grandmother’s house while the latter was away. Other teens came and they brought beer and consumed it. Barron and the deceased, a teen, were upstairs and decided to go downstairs and “streak” the girls at the party. The deceased clearly changed his mind at the top of the stairs and Barron gave him a push to egg him on. The push caused the deceased to lose his balance and tumble downstairs. The boy eventually dies. Barron behaves strangely, kicks everyone out of the house
|
ISSUES
|
What constitutes an unlawful act?
|
HELD
|
Accused convicted of manslaughter.
|
RATIO
|
The accused was criminally negligent when he failed to give thought to the obvious and serious risk of severe bodily harm to his friend.
|
NOTES
| -
The deceased did not explicitly consent to the push, though the push was extremely minor.
-
Professor Sklar wonders whether we should be so retributive as to smack someone in such a tragic circumstance with a manslaughter charge.
-
Had Barron known that his friend was going to die, he would not have acted the way he did.
-
The Ont. C.A. reversed this. How would this have been decided under Creighton?
|
Contentious Issues in Sexual Assault
-
We have to see the distinction between actus reus issues and mens rea issues: this is fundamental to our examination of the cases.
-
Chase case looks at what parts of the body must be touched, etc. The first actus reus issue is what act of touching constitutes the sexual assault? The second actus reus issue is whether or not the woman consented because it regards the state of mind of the victim.
-
The mens rea issue is what was the accused’s state of mind?
-
Another mens rea issue is what was the accused’s belief about the victim’s consent. The mistake must be a reasonable honest mistake.
-
Ewanchuk and Cornejo both discuss the honest belief in consent issue. But Professor Sklar sees Ewanchuk as dealing more with the actus reus issue concerning the victim’s consent or lack thereof.
R. v. Ewanchuk [1999] Implied consent is never a defence for sexual assault.
1. S.C.R. 330
|
FACTS
|
The accused made sexual advances on a girl, and she was saying no the whole time. When she said no, the guy would stop, and would start again later. Afraid, her subsequent refusals were not as vehement. The trial judge held that the complainant’s failure to communicate her fear rendered her subjective feelings irrelevant, and acquitted the accused. He characterized the accused’s defence as one of “implied consent.”
|
ISSUE
|
Is implied consent an available defence in Canadian sexual assault cases?
|
HELD
|
No. Crown’s appeal allowed; conviction substituted.
|
RATIO
|
The doctrine of implied consent has been recognized in our common law in a variety of contexts, but sexual assault is not one of them. The complainant either consented or not. There is no third option.
|
NOTES
|
Sklar on Major J.—the original judgment should have taken one paragraph: when the trial judge decided that she wasn’t consenting, that’s the end of the actus reus issue.
The majority does not believe there is a strong enough “honest but mistaken belief in consent” defence to go to the jury.
Sklar does not understand how there could have been any analogy to Barron and the doctrine of implied consent at trial since…
-
No previous knowledge of one another.
-
No previous history of habitually touching one another.
-
Considering she kept saying “no.”
Sklar thinks that it was a mistake for the accused not to testify.
Meaning of consent in the context of an honest but mistaken belief in consent
-
The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said yes through her words and/or actions. Different from consent in actus reus.
Limits on honest but mistaken belief in consent
-
Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies
L’Heureux-Dubé J.: Unless and until an accused first takes reasonable steps to assure that there is consent, the defence of honest but mistaken belief does not arise.
There can be equivocal cases where whether or not there was consent can be ambiguous but this was not one of them and it did not require all this discussion, though the court went through with it anyway. Sklar: “This was an open and shut case.”
|
R. v. Cornejo (2003) No “air of reality” to mistaken belief defence.
CanLII 26893 (ON C.A.)
|
FACTS
|
Cornejo was charged with one count of sexual assault and one count of breaking and entering a dwelling house and committing the offence of sexual assault. He was tried before a jury and acquitted on both counts. The complainant and Cornejo were co-workers. They appear to have had a moderately friendly casual relationship which included bantering with a sexual aspect. There were several incidents where the complainant had to reject Cornejo’s advances. On the night in question, Cornejo took an ambiguous phone conversation as an invitation to enter the woman’s home. The woman was quite drunk from an office party when Cornejo walked in, removed her clothing and attempted to have intercourse with her. The complainant claims she was explicit in saying “no” while Cornejo claims she helped him get her clothes off by lifting her pelvis.
|
ISSUE
|
Did the trial judge err in leaving the defence of honest but mistaken belief in consent for the jury's consideration when there was no air of reality to that defence (it was based on the woman lifting her pelvis)?
|
HELD
|
Yes, the trial judge erred. Crown’s appeal allowed.
|
RATIO
|
Abella J.A.: “In these circumstances, I cannot, with respect, see any air of reality to Mr. Cornejo's assertion that he honestly believed the complainant was consenting to his presence in her apartment, let alone to the sexual activity he engaged in with her there.”
|
NOTES
| -
Sklar: With respect, Abella conflates the issue of whether there was consent and whether there was an honest but mistaken belief in consent (actus reus vs. mens rea issue).
-
If his testimony is to be believed beyond a reasonable doubt, then there should be an acquittal for lack of an actus reus.
-
According to his testimony, the situation is very ambiguous.
-
It therefore depends on whose testimony you believe beyond a reasonable doubt for this actus reus issue.
-
Second issue: Honest but mistaken belief in consent must meet an air of reality threshold before it can go to the jury as a defence.
-
Following Ewanchuk, believing that 1) silence; 2) facility; 3) ambiguous conduct constitutes consent is NOT a defence.
-
Abella J.A.: “The trial judge failed to make reference to any facts other than the movement of the complainant's body after the sexual activity had begun. In these circumstances, the movement of the complainant's pelvis was simply an insufficient basis to allow the defence to go the jury.”
-
Cornejo should have taken reasonable steps to ascertain the consent of the complainant in order to invoke the defence (as per s. 273.2(b)).
-
The effect of the burden 273.2(b) is clear in this case. Accused must also show that he took reasonable steps given the circumstances known to him.
|
Notes on shifting the burden of proof
-
The Supreme Court of Canada in Daviault, in addition to stating that extreme intoxication resembling automatism is a good defence, shifted the burden of proof to the defence on a balance of probabilities.
-
Sklar doesn’t like shifting the burden of proof. He holds to the rule in Woolmington: the importance of the presumption of innocence and proof beyond reasonable doubt is required to rebut that presumption. However, Sklar acknowledges some policy considerations in shifting.
-
Criminal Code has a preamble at s. 33.4 (?) which shifts the burden of proof, explaining that the burden of the Crown is unfair. If Parliament is careful, maybe this shift in burden of proof can survive a constitutional challenge.
Would it have been preferable for Parliament to have created a separate offence of negligent sexual assault, punishing unreasonable behaviour with a maximum of five years? Would the possibility of plea bargaining and guilty pleas, thereby avoiding trials, be a bonus?
R. v. Hogg (2000) No consent when abusing position of authority.
Get Reference
|
FACTS
|
This is another he-said-she-said case. He was a drug dealer, she a customer. She wanted marijuana but had no money. When she refused to offer sex for marijuana, she says he tore her pants and raped her. He says the complainant performed oral sex in exchange for cocaine and she was a willing participant.
|
ISSUE
|
Did the trial judge err in instructing the jury?
|
HELD
|
Yes.
|
RATIO
|
There was no proof that he was her drug supplier and she was dependent on him thereby there was no establishing an imbalance of power. (Professor Sklar, though, is more interested in obiter; see notes, infra.)
|
NOTES
| -
The woman had consented but Parliament says no consent is obtained for the purposes of s. 273.1 (2)(c) the accused engages the acquaintance by abusing a position of authority.
-
Par. 17: The protection of the vulnerable and weak is clearly the aim of 273.1(2)(c)
the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
-
Sklar: should this be a crime of sexual assault? After all, she wasn’t in extremis, or desperate. Sklar is a big fan of autonomy and choice and he thinks that Parliament is denying women’s right to choose whether they want to have sex for drugs or not. He says Parliament already allows women to have sex for money so long as it’s not in public or in a bawdy house.
|
R. v. Orpin (2002) Convoluted fact-driven case in which trial judge erred.
CanLII 26893 (ON C.A.)
|
FACTS
|
This case is very fact-driven and the law isn’t all that clear. It is extremely convoluted. Professor Sklar assigned it just to show us how complex these cases get.
|
ISSUE
|
Should there be a difference whether the sex is romantic or for treatment purposes?
|
HELD
|
New trial ordered.
|
RATIO
|
Trial judge made many mistakes
|
NOTES
| -
Should there be a difference whether the sex is romantic or for treatment purposes?
-
Sklar: Shouldn’t matter to the law whether they’re in treatment or treatment is over because there is still a power relationship and influence.
|
Share with your friends: |
