FACTS: Respondent engaged in risky sex with long-time partner. One time, the respondent choked the complainant until she passed out; when she awoke, respondent was inserting a dildo in her anus. After she regained consciousness, respondent removed the dildo and the two resumed sexual activity. Complainant filed complaint after relationship dissolved, after respondent threatened to seek sole custody of their son.
PROCEDURAL HISTORY: Guilty of sexual assault at trial, appeal allowed 2-1.
ISSUES: Can people consent in advance to sexual activity?
DECISION: Appeal allowed, and conviction restored.
REASONS: You have to consent to sexual activity at the time of that particular sexual activity; otherwise, it is sexual assault through both actus reus and mens rea. Consent under the Code must be to the particular sexual act in question, which requires that the parties be conscious throughout. It is impossible for someone who is unconscious during sexual activity to subjectively consent to that activity. Similarly, parties must be free to revoke their consent at any time, which they cannot do while unconscious. This precludes the possibility of consent in advance (including small intrusions, like kissing a sleeping spouse before leaving for work). Policy arguments to the contrary are not strong enough, given the nature of sexual activity (unlike surgery or other activities where advance consent is permissible) and the deep impact that unwanted sexual contact can have for victims (there is no way to control the extent of their partner’s activity while they are unconscious, there is no way to communicate). It would also introduce an objective test into the subjective requirements of sexual assault.
RATIO: You cannot consent in advance to sexual activity that will occur when you are unconscious. Consent to sexual activity requires a conscious mind during the particular activity.
DISSENT OR CONCUR: Fish J. – the majority’s approach unduly infringes on people’s privacy and ability to consent to freely negotiated sexual activity. The Code does not preclude advance consent to sexual activity, but rather states that no consent can be obtained from an unconscious person. Consent given prior to unconsciousness does not vanish at the moment of unconsciousness. On the facts of the case, the sexual assault provisions that the majority invokes do not apply since consent was freely given. Consent should only be vitiated on a case-by-case basis where it is shown that there was no consent, where they were unconscious when they were supposed to have given consent, etc. The majority’s policy reasons are unpersuasive since any sexual activity beyond what has been consented to is caught by the law, and difficulties with evidence do not merit changing the substance of the law.
COMMENTS: McLachlin mentions that de minimis does not apply in this case, though it hypothetically could in sexual assault cases.
R v Malcolm 2000 MBCA 77 (Helper J.A.)
FACTS: Complainant and accused were at New Year’s party. After complainant’s husband left the party, complainant went to bed, and accused went to her bedroom. After trying to wake her, accused engaged in sexual activity while she was still lying down. When she turned around and saw the accused, she yelled and called the police. Accused claimed that the complainant had initiated sexual activity, while complainant disclaimed that and testified that she thought the accused was her husband at first.
PROCEDURAL HISTORY: Acquitted at trial.
ISSUES: Did the trial judge err by not continuing on to s. 273.2(b) of the Code after considering s. 273.2(a)?
DECISION: Appeal allowed.
REASONS: s. 273.2(a)(ii) of the Code addresses recklessness or wilful blindness as elements that negate an accused’s mistaken belief in the complainant’s consent. S. 273.2(b) is connected to (a) with an or, though, so both have to be considered. S. 273.2(b) introduces a quasi-objective standard to the evaluation of sexual conduct – would a reasonable person have taken further steps to ensure consent under the circumstances? Whenever there is an air of reality to the accused’s claim of mistaken belief in consent, s. 273.2(b) must be applied as well as (a). If under the circumstances a reasonable person would have taken further steps to ensure consent before proceeding with the sexual activity, but the accused did not, then there can be no air of reality to the claim of mistaken belief in consent.
RATIO: A defence of mistaken belief in consent can only be made out if it was not wilfully blind or reckless, and if a reasonable person in the circumstances would not have taken further steps to ensure consent before proceeding.
R v Darrach (1998), 38 OR (3d) 1 (CA) (Morden J.)
PROCEDURAL HISTORY: Convicted at trial of sexual assault.
ISSUES: Does s. 273.2(b) of the Code violate ss. 7 and 11(c) the Charter?
DECISION: Appeal dismissed.
REASONS: Sexual assault is not a stigmatic offence that requires that subjective mens rea be proven (given its broad swath, lack of minimum penalty, etc.). Moreover, 273.2(b) retains a significant enough degree of subjective fault, since it is a modified objective test, not a purely objective test. It is restricted to the circumstances known to the accused at the time, not all of the relevant circumstances. Nor does it require that all reasonable steps be taken to ascertain consent. You can still make an unreasonable mistake after taking reasonable steps without failing the air of reality test. The modified objective test does not compel an accused to testify or shift an onus, though it does impose a tactical burden.
RATIO: S. 273.2(b) uses a modified objective test, analyzing what a reasonable person would have done under the circumstances the accused knew they were in. This does not violate the Charter.
INSANITY
Children under the age of 12 cannot be convicted of criminal offences under the Code. Between 12 and 18 the Youth and Criminal Justice Act applies.
A rebuttable presumption of sanity is imposed at 12.
Fitness to stand trial is based in statue (Code, defined in s. 2 under “unfit to stand trial” and “mental disorder”) and the Constitution.
An accused is rebuttably presumed competent to stand trial (“presumption of sanity”). This can be rebutted on a balance of probabilities.
This applies during trial – if someone commits a crime while suffering a mental disorder, but later goes on medication and can stand trial, then they’re good.
Any party (prosecution, defence, court) can raise an issue about fitness, and it must be proven on balance of probabilities by the party who raises it. If you think the accused is unfit to stand trial, you are obliged to raise it even if they don’t want you to. The trial is terminated if the accused is found not fit.
Unfitness in statute is based on mental disorder, conceived of as “a disease of the mind”.
Principles of fundamental justice forbid someone not fit to stand trial from having to defend themselves. But this doesn’t apply to appeals.
Similarly, it offends principles of fundamental justice to hold someone criminally responsible when suffering from a serious mental disorder such that they cannot choose to follow the law.
History:
Until 1991, there were only 2 outcomes: if the mental disorder was not severe enough, there was a conviction; if it was, then the offender was acquitted but detained at the monarch’s pleasure.
In 1991 an intermediate category was introduced: “not criminally responsible on account of a mental disorder” (NCR). Someone who is NCR is subject to assessment by a review panel, who can detain them or release them (with or without conditions).
Previously, the M’Naughten rules applied as codified in the Code. The differences aren’t really important, except that M’Naughten uses the word “know” instead of “appreciate” when referring to the nature of the criminal act – “appreciate” broadens the scope of the insanity defence.
Insanity is governed by s. 16 of the Code, which requires 2 elements:
The accused was suffering from a mental disorder at the time of the offence
AND the accused’s mental disorder must make it impossible for them to appreciate the nature or quality of the act (foreseeability, understanding of the physical and the emotional consequences or risks of the act) OR that it was wrong (meaning legally or morally wrong).
This functions as a sort of filter – first a mental disorder must be identified, then it has to interfere with your appreciation of the act or its wrongness.
If the defence has an air of reality, it must go to the trier of fact. If it is proven on a balance of probabilities, then the verdict is NCR.
“Mental disorder” is a legal concept (“disease of the mind”), not a medical one – the DSM, testimony by doctors, etc. is highly probative but it’s ultimately a question of law, not of fact. It does not include intoxication, self-induced states, or anger.
16.2 makes it a presumption that you are not suffering a mental disorder, rebuttable on the balance of probabilities. This is constitutional – generally, it’s prohibitively difficult to prove insanity (especially by the Crown) if there’s no presumption to lift that burden (otherwise defence could raise insanity and then not cooperate to escape liability).
If someone is found NCR:
It can be appealed.
There’s a disposition hearing by the Court or a review board – it’s inquisitorial in nature.
Someone who is NCR but is not a threat to the public should be discharged. The danger posed/not posed has to be shown using evidence – high probability of injurious acts, conduct that would be criminal but for the NCR finding, high magnitude of danger posed. Relevant: medical history before and after the offence, the offence committed, availability of support, expert recommendations.
This process is constitutional – it does not offend the dignity of the person found NCR, and “dangerousness” is a certain enough standard. There are procedural safeguards in place to protect the interests of those detained for being NCR.
