R. v. Bulmer [1987] Air of reality means considering whether there were reasonable grounds for mistaken belief.
1 S.C.R. 782
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FACTS
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Bulmer brought a prostitute to a motel room where two of his friends were waiting. The hooker objected to their presence so they negotiated a price with her after which they agreed to return in 20 minutes. The two guys walked out but returned and told the prostitute that she would have to perform the acts free of charge. Frightened, the prostitute performed various sexual acts. One of the accused submitted that he held an honest but mistaken belief in consent.
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ISSUE
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In all the circumstances of this case, is there an air of reality in the defence?
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HELD
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There was evidence on mistake defence fit to go to a jury. Trial judge erred in that mistake must be both honest and reasonable. New trial.
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RATIO
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McIntyre J.: [S. 265(4)] does not require that the mistaken belief be reasonable or reasonably held. In determining the honesty of the asserted belief, the presence or absence of reasonable grounds are relevant factors for the jury’s consideration.
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NOTES
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Lamer J. –Judges ought not use the air of reality test to withhold the mistaken belief defence if the accused actually takes the stand because his testimony is evidence and the jury is the master of the facts.
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Lamer J. –It used to be the law that the complainant’s testimony had to be corroborated materially. This was abolished by legislation because it places too tough a burden on the Crown and it is disrespectful to the complainant. So Lamer makes the point that if the complainant no longer has to be corroborated it’s only fair the corroboration requirement should not be imposed on the accused.
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Oslin decided about 8 years later. Cory J. mentioned that there is no requirement that evidence independent of the accused be made out to put the defence to the jury. However, the mere assertion will not be enough. This sounds like a self-contradiction. The key to it is that the mere assertion is not enough but the accused can follow up by mentioning why he felt this way. Davis clarifies this below.
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Remember Bulmer (and Davis) were decided before 273.2(b) and the latter imposes additional burdens on the accused.
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R. v. Davis [1999] Clarifying “air of reality” test.
3 S.C.R. 759
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TEST
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Lamer C.J.C.—Honest but mistaken belief denial of mens rea of sexual assault.
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Following Ewanchuk: actus reus requires touching of sexual nature and mens rea requires intent to touch and knowledge of or recklessness/wilful blindness as to lack of consent.
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When there is honest but mistaken belief, the actus reus is established but not mens rea.
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In order to consider the defence, “given the evidence, it must be possible for a reasonable trier of fact to conclude that the actus reus is made out but the mens rea is not.”
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“In determining whether there is an air of reality to the defence, the trial judge should consider the totality of the evidence… Care should be taken not to usurp the role of the trier of fact. Whenever there is a possibility that a reasonable trier of fact could acquit on the basis of the defence, it must be considered.”
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On the one hand, Lamer states a trial judge must not weigh the evidence, but on the other, doesn’t assessing whether the evidence is plausible on its face before putting it to a jury constitute weighing the evidence?
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The particular charge was committed before the enactment of 273.2(b) so that this law did not apply (even though by this time it was on the books).
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NOTES
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Air of reality just requires the accused to put in enough evidence to make the issue a live one and make the judge believe that he better instruct the jury on the defence.
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Any burden of proof then shifts to the Crown; there is no burden of proof on the accused.
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Admissibility of the Sexual History of the Complainant (the “Rape Shield” Statute)
We’ve been discussing cases regarding whether there was consent or whether there is an air of reality to the defense of mistaken belief in consent.
Susan Estrich, Teaching Rape Law (1992), 102 Yale L.J. 509 -
The orthodoxy that the man is always wrong and woman is always right is bad educationally and it also removes the classroom from reality because the debate about what is reasonable in when it comes to sex is a controversy that animates the law.
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These days, judges and juries are less inclined to accept male conduct that only a few years ago was tolerated as understandably macho. Most now believe that a man should listen to a woman’s words.
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Credibility is therefore the only defense game in town. The defense’s job, then, may only be done by destroying the credibility of the “victim”.
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What is relevant to us in determining who is more credible?
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If we allow psychiatric and sexual history as evidence, do some women become “unrapable”?
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If we allow the testimony of other women against an accused, do we risk convicting the defendant for being a bad man?
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Isn’t evidence of a man’s history of abuse of other women more probative of rape than evidence of a woman’s sexual history probative of consent?
Notes
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Similar fact crime evidence is not admissible unless the relevance is so high that the probative value outweighs the prejudice to the accused.
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Ewanchuk was the only anomaly where there was no dispute over what happened. The other cases are all “he said, she said” cases.
Professor Sklar’s hypothetical problem: Accused charged with sexual assault. Both the accused and complainant agree that they met in a bar. The accused invited the complainant to his apartment and she agreed. She says she accepted the invitation for further drinks. They began kissing on the couch. She protested when he began to unbutton her blouse. He persisted and had sexual intercourse with her over her protests. He makes an application under s. 276 that he can call the bartender who can testify that the complainant has had conversations with five men at the bar and left in their company. He can also call the five men and ascertain from them that the complainant had consensual sexual intercourse with them. Should the judge allow the application and let the accused cross-examine the accused on the basis of the bartender’s testimony?
Look at middle paragraph on p. 679 (9th ed.) on issues of relevance, weight, probative value in relation to the prejudice. What is the nature of the balance? McLaughlin: as long as the relevance outweighs the prejudice, it is allowable if the prosecution brings it up. If it is the defense who brings it up, the prejudice to the complainant has to be substantially greater than the probative value for it to be disallowed.
Voir dire: hearing before judge where the accused presents whatever evidence he has.
R. v. Seaboyer [1991] McLachlin finds problems with s. 276.
2 S.C.R. 577
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FACTS
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Section 276 of the Criminal Code (1983) complainant’s sexual activity referable to issue of consent. Section 277 evidence inadmissible in reference to issue of complainant’s credibility.
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ISSUE
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Do the inadmissibility of evidence provisions under ss. 276 and 277 violate s. 7 of the Charter? In other words, do they interfere with the right to a fair trial?
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HELD
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276 (consent) as drafted violates the Charter. 277 (credibility) is fine.
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RATIO
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Re s. 277—There is no logical and practical link between a woman’s sexual reputation and whether she is a truthful witness. The evidence excluded by s. 277 can serve no legitimate purpose in the trial.
Re s. 276—It is a blanket exclusion, subject to three exceptions which may exclude evidence relevant to the defence having a probative value that is not substantially outweighed by the potential prejudice to the trial process.
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NOTES
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Re s. 276: “…this type of evidence might be admissible in non-sexual cases under the similar fact rule. Is it fair, then, to deny it to an accused, merely because the trial relates to a sexual offence?”
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Given the low threshold of admissibility of evidence based on relevance we have to consider…
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What is the law? What ought it be? Keep these questions separate. Two principles:
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One of the principles is that pattern conduct will sometimes be admissible. McLachlin says that this evidence must be carefully scrutinized.
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The balancing process is another principle built into 276. In deciding whether the evidence is admissible, the evidence must be excluded when its probative value is outweighed by its prejudice.
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To be admissible under 276, the same balancing act is required of the judge.
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Principles that trial judges must follow in allowing sexual activity evidence are found at page 674 (8th edition)
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Bill C-49 amended s. 276 in 1992 (p. 683, 8th edition)
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Criminal Code: S. 276
Evidence of complainant's sexual activity
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Idem
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society's interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13.
R. v. Darrach [2001] S.276 is constitutional. It only excludes material that is irrelevant.
2 S.C.R. 434
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FACTS
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The accused charged with sexual assault and, at his trial, attempted to introduce evidence of the complainant’s sexual history. He was unsuccessful in doing so on the basis of s. 276(1) which governs the admissibility of sexual conduct evidence generally.
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ISSUES
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Does section 276(1) violate the right of an accused to make full answer and defence and to a fair trial and is it therefore unconstitutional?
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HELD
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No.
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RATIO
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Because s.276 only excludes material that is not relevant, it cannot infringe the accused’s right to make full answer and defence.
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NOTES
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From Mills: the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses.
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Section 276 is not a blanket exclusion, it only prohibits use of evidence of past sexual activity when offered to support either that a complainant is more likely to have consented or that she is less worthy of belief by reason of the sexual nature of the activity she once engaged in.
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This is in order to protect against sexist beliefs about women that could potentially distort the trial process. Only sexual activity that ties in with the myth that since she consented in the past, she’s more likely to have consented in the present, thereby going to her credibility, is prohibited as evidence.
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Prior sexual history can be used as evidence to show pattern of conduct and inconsistent statement. Evidence of prior inconsistent statements is admissible if it goes to a material matter. Contradictions matter in terms of credibility.
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Skar: “My problem is with the pattern of conduct….This makes me laugh. The only relevance of a pattern is that she has sex with men in certain situations. …It looks like it’s correct, but it’s false. [The only pattern they’re trying to show is sexual behaviour.]”
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Remember, McLachlin in Seaboyer states that evidence of pattern goes to consent and therefore will most often be inadmissible.
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S.276(2) – judge must weigh the probative value of the evidence against its prejudicial effect to determine its admissibility – use of word “SIGNIFICANT” outweighed by use of word “substantial” so OK.
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R. v. Nelson (2001) Victim’s previous sexual conduct correctly excluded.
156 C.C.C. (3d) 248 (B.C.C.A.)
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FACTS
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Sexual assault case. Accused knew complainant for a week. Had sexual relations with her and spent the night at her place one night. The following night he wanted some more, but there were children in the house. She told him it was “too early in the relationship.” He wouldn’t back off and forcibly had sex with her leaving bruises on her person. The appeal hinged on her testimony that she refused his advances the second night because it was “too early” in the relationship and whether this testimony could mislead the judge if the latter did not also consider the previous sexual conduct.
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ISSUES
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Was the judge right in excluding previous sexual relations as evidence of consent?
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HELD
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Yes. Accused’s appeal rejected.
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RATIO
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In any event, the accused in his evidence did not rely on the events from the previous night to support his belief that the victim did consent; instead, his defence was that the victim did consent.
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NOTES
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Per Braidwood J.A. (dissenting): “Without the evidence of what occurred the night before, the trier of fact would be left with a misleading impression. By making the statement that she did not want to have sex with the accused because it was too early in their relationship, the victim put the issue of the nature of the relationship squarely before the court. The statement of the victim in cross-examination was untrue and the accused was entitled to make use of this inconsistency during cross-examination.”
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The dissent holds that evidence that contradicts the complainant on a material point should be brought up. Show it to be a prior inconsistent statement.
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Sklar agrees with the majority that the case is distinguishable from Harris (paras. 39-41)
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Para. 18, there are two issues: one is the credibility issue, one is the consent issue. Sklar agrees on the credibility issue because there was enough evidence that they had a previous relationship without bringing up the sexual activity.
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Under old s. 276 (struck down in Seaboyer), prior sexual relations with the accused was not barred as evidence (nor was it at common law before old s. 276).
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New s. 276 generally excludes the evidence, whether with the accused or another person. There is no difference in 276 between prior sexual acts with the accused person and prior sexual acts with other people.
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R. v. Anstey (2002) Questioning as to the sexual nature of the activity should have been allowed because it’s meant to show improbability.
162 C.C.C. (3d) 567 (Nfld. and Labrador C.A.)
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FACTS
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The accused was charged with four sexual offences. He and the complainant both lived in a small community. The complainant had alleged that several men who lived in that community had sexually assaulted her during her pre-teen and teenage years. The trial judge permitted counsel for the accused to cross-examine the complainant with respect to certain observations or statements that she alleged those men had made to her, but refused to permit questions as to the details of the sexual acts alleged. Section 276(1) of the Criminal Code, states that "evidence that the complainant has engaged in sexual activity . . . is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant . . . is more likely [**2] to have consented to the sexual activity that forms the subject-matter of the charge, or . . . is less worthy of belief". The accused was convicted of two counts of indecent assault.
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ISSUES
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Did the trial judge err in disallowing the defence’s questioning as to the sexual nature of the activity that is the subject of the complaint?
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HELD
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Yes. Appeal allowed; new trial ordered.
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RATIO
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Section 276 does not restrict evidence to support an inference about the complainant's credibility by reason of the improbability of virtually identical comments and actions by a number of alleged assailants in different circumstances over a period of several years. A trier of fact could conclude that the similarities were so improbable that the complainant was lying and was repeating the allegations by rote.
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NOTES
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The purpose of the proposed line of questioning was to test the credibility of the complainant's evidence, not by reason of the sexual nature of the activity, but to suggest to her that there was such a pattern to her evidence with respect to what each of the men against whom she had made complaints had said and done that it was unlikely that the events complained of had occurred.
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