Honest but Mistaken Belief in Consent
The four questions:
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What is the mens rea for rape?
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Knowledge of the absence of consent, or recklessness as to the absence of consent. (We can include willful blindness here, too.)
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Where do we place the burden of proof? The accused on a balance of probability? (50% + 1 of the evidence)
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Some people argue for this given the large acquittal rate in sexual assault cases. (This raises an 11(d) Charter issue: presumption of innocence.)
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What is mistake of fact?
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What is an honest and reasonable mistake?
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Is there an air of reality to the defence?
Pappajohn v. R. [1980] Honest though mistaken belief voids mens rea.
2 S.C.R. 120
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FACTS
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This is a background case that leads to cases like Ewanchuk and Cornejo. The case involved a man and a real estate agent who had lunch and alcohol and then went to his house, where he said they had consensual relations, and she says that she was raped.
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ISSUE
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Is mistaken belief (mistake of fact) a valid defence? Was there an air of reality to his mistake of fact?
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HELD
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Yes. Appeal dismissed.
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RATIO
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If the appellant entertained an honest though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present and the appellant would be entitled to an acquittal. An accused person who seeks to rely upon a defence of mistake of fact must, in order to succeed, establish that his mistake was reasonable as well as honest.
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NOTES
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This is no longer the law as far as its main judgment. It has been replaced by statute.
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Dickson’s holding that mistake need not be reasonable has been replaced by s. 273(2) (b) (“the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”) of Criminal Code, which Dickson might not see as reasonable. Dickson thought that requiring mistake to be reasonable would alter this into a crime different from a mens rea crime.
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Dickson J. dissented on evidentiary issues (the air of reality to the claim of mistaken belief) related to this case specifically (the folded clothes, the neatly removed necklace, etc.). Nonetheless, McIntyre J., for the majority, endorsed Dickson’s outline of when mistake of fact is available as a defence (p. 627).
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Dickson: This is a true crime that should not be determined on the basis of negligence.
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The difference between McIntyre and Dickson is that McIntyre’s view gives a better chance for a conviction. McIntyre says all the stuff about the clothing and jewellery, is an issue for the jury but that the only issue is whether she’s telling the truth (whether she consented, actus reus issue). Dickson said that this evidence points to whether he was honestly mistaken (mens rea issue).
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Sklar takes the position that McIntyre is right and that Dickson’s reasoning is faulty in this case.
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But mistake of fact is not actually a defence; it is the absence/denial of mens rea. Just like alibi is called a defence, but is actually a denial of actus reus. The accused’s mind is blameless, though his act is harmful.
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This case refers to a British case called Morgan, where the husband, an army officer, told three subordinates to go have sex with his wife, saying that she got her kicks from screaming in fear and trying to fight back.
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In Pappajohn, there is mention of the Plummer case which discusses what reasonable steps the initiator of sexual intercourse must take to ensure that there is consent when the complainant is passive and unrersponsive.
Sansregret v. R. [1985] Wilfully blind to the risk that fear vitiated consent.
2 S.C.R. 120
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FACTS
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Sansregret went to his ex-girlfriend’s house in the middle of the night brandishing a knife. In order to diffuse the tense situation, his frightened girlfriend would consent to have sex with him. The trial judge found that the appellant honestly believed that the complainant was giving a free and genuine consent to intercourse. She found that the complainant, who knew the appellant, also believed in the honesty of his belief. Trial judge therefore acquitted.
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ISSUE
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Was the mistake of fact defence available to the accused?
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HELD
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No. Appeal dismissed.
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RATIO
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Sansregret’s belief in his ex-girlfriend’s consent was not reasonably held because was wilfully blind to the risk that his ex-girlfriend’s consent might not be valid because she was afraid.
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NOTES
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This is no longer the law. When this case was heard, Pappajohn was still law. Cornejo, Malcolm, and Darrach are now the law.
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McIntyre, once again, wrote the judgment in this case. He found that there was an erroneous finding of fact. He can’t do that as a Supreme Court judge. Trial judge is the master of factual issues.
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It is conceded on the actus reus issue that she did not consent. Her fear vitiates consent. Even the trial judge acknowledged that the consent was bad.
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The mens rea for rape under s.1343(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and, for s.143(b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature.
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Wilful blindness and recklessness are distinct in that while recklessness involves knowledge of a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he doesn’t want to know the truth.
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An accused can still hold an unreasonable belief and have the defence of mistake of fact available to him… however, he must not be wilfully blind in holding that belief.
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How would this case been decided under s. 273.2(b) and in light of Cornejo? What reasonable steps would have satisfied 273.2(b)?
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Criminal Code: S. 273.2
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
1992, c. 38, s. 1.
Dickson CJC: thought that a provision like the above would have turned sexual assault into a crime based on negligence rather than mens rea.
Sklar: Consider whether s. 273.2(b) has turned sexual assault into a crime of strict liability. Remember Sault Ste-Marie and the requirement of due diligence. We’re not even talking about criminal negligence and the marked departure test in Creighton.
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Is this change in the mens rea requirement justified?
R. v. Malcolm (2000) A clear test for s. 273.2(b).
35 C.R. (5th) 365 (Man. C.A.)
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TEST
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Madam Justice Helper: Section 273.2(b) requires a quasi-objective test.
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Ascertain the circumstances known to the accused.
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If a reasonable man were aware of the same circumstances, would he take further steps before proceeding with the sexual activity?
If the answer is YES, and the accused has not taken further steps, he is not entitled to the defence.
If the answer is NO or MAYBE, then the accused would not be required to take further steps and the defence will apply.
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NOTES
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This case has been cited with approval by later cases.
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Complainant was married to a close friend of Malcolm’s and after a long night of partying and drinking, he testified that she began kissing (she said “you could have kissed me longer”) and they went to bed and began fondling each other. She then jumped up and ordered him out of her house. Her testimony diverged from his. Taking into account his testimony, how do we decide this under 273.2(b)?
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R. v. Darrach (1998) Rape shield provisions in Code upheld.
13 C.R. (5th) 283 (Ont. C.A.) affirmed [2000] 2 S.C.R. 443
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FACTS
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The accused wanted to bring evidence of the victim’s past sexual behaviour. There are provisions in the Code (“rape shield” provisions at s. 276) stating that that is not allowed. Accused challenged the constitutionality of that provision, saying it prevented him from mounting a full defence.
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ISSUE
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Do the impugned provisions violate principles of fundamental justice?
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HELD
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No. Appeal dismissed.
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RATIO
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The procedure does not violate the accused’s right to make full answer and defence. It does not violate the accused’s s.7 Charter right to a fair trial nor his s.11(c) right not to testify against himself or his s.11(d) right to a fair hearing.
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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
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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.
On the Constitutionality of s. 273.2(b)
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The S.C.C. in this case says that the accused does not need to take all reasonable steps (as per s. 273.2(b)), but only some based on what is known to him, and even after taking those reasonable steps, can still come to an unreasonable conclusion. The court is trying to not make the test for s. 273.2(b) a strictly objective test because of the stigma involved in a conviction of the crime. Such stigma would make it preferable for this to be a mens rea offence.
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But every objective test requires an analysis of what the accused knew subjectively. Remember the split decision in Tutton. So, it does not follow that there is a greater subjective element to the 273.2(b) test than any other test.
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Sklar: The court here has made a fundamental error of principle in, perhaps, wanting to uphold the constitutionality of 273.2(b), which they didn’t really have to do since most courts accepted it anyway. Prof. Sklar thinks that 273.2(b) will survive and he thinks that if ever it is challenged, s. 1 of the Charter will save it.
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