FACTS: Respondent was a physician charged with sexually assaulting seven patients. Patients had consented to the touching of intimate areas but that consent only extended to medical purposes.
PROCEDURAL HISTORY: Acquitted at trial (nonsuit).
ISSUES: Was the touching in question a sexual assault?
REASONS: The sexual component of sexual assault is part of the actus reus, not mens rea (which requires only general intent). An objective test is used to determine whether the assaultive conduct was sexual and the complainant’s sexual integrity was violated, and the totality of the circumstances will be considered to determine this. This includes power relations, like doctor-patient, which can make this determination difficult (where is the line between medical exam and sexual assault?). The conduct of the parties can be considered from the perspective of that relation and its attendant duties or obligations (any fiduciary obligations, lack of power or knowledge in circumstances, etc.).
RATIO: Sexual assault is determined objectively, based on all the circumstances of the case. Where it is implicated in a relation of trust (e.g. doctor-patient), that relation must be considered and the conduct evaluated in that context (including any peculiar vulnerabilities).
R v S (DG) (2004), 72 OR (3d) 223 (CA) (Cronk J.A.)
FACTS: Respondent broke up with complainant, and then threatened to distribute nude photographs of her unless she had sex with him, which she did more than once. She believed she had no choice but to acquiesce. Respondent was charged with assault and uttering death threats as well as sexual assault.
PROCEDURAL HISTORY: Sexual assault charges dismissed at trial.
ISSUES: Was the complainant’s consent vitiated by the respondent’s blackmail?
DECISION: Appeal allowed, and directed conviction entered.
REASONS: To establish sexual assault, it must be shown that there was a) touching, b) of a sexual nature, c) to which there was no consent. The complainant testified that she only agreed to sex to make sure the photos were not disseminated, and she thought she had no alternative course of action. The threat to expose nude photos is extortion (that the respondent was not charged with extortion is irrelevant), and thus the complainant was not freely consenting. There was no need to determine whether the complainant’s consent had been vitiated since there was no freely given consent at all.
RATIO: Consent not freely and voluntarily given is not consent. The Code provisions on the vitiation of consent to (sexual) assault are not exhaustive as to what can negate consent.
R v Faulkner (1997) 129 CCC (3d) (ONCA) (Goudge J.A.)
FACTS: Complainant (15) and appellant (23) were at a party, where complainant consumed alcohol and drugs and reported feeling off, but never losing consciousness. Appellant drove complainant home, but before dropping her off they had sex. Complainant says she did not want to but could not communicate that, though she admitted that the appellant could have thought it consensual
PROCEDURAL HISTORY: Convicted at trial for sexual assault and trafficking.
ISSUES: Did the complainant have the capacity to consent to intercourse?
DECISION: Appeal allowed and new trial ordered.
REASONS: Trial judge said 3 factors made complainant incapable of consenting: age, consumption of drugs, and location of incident. First and last points do not bear on ability to consent, though they are probative. Incapacity due to drug consumption has to be established through evidence, which was not provided in this case; moreover, evidence suggested that complainant retained sufficient capacity to function during and after the party (could recall conversations, no evidence of impairment when she got home). This can come down to an issue of the credibility of the parties.
RATIO: A person can be sufficiently impaired to make it impossible for them to consent to sexual activity, but this must be established on the facts of the case (as an element of actus reus).
R v Ewanchuk [1999] 1 SCR 330 (Major J.)
FACTS: Respondent met 17-year-old complainant outside a mall, and offered her an interview for a job. The interview, initially in respondent’s van, moved to his work trailer. After complainant entered, respondent closed the door, at which point complainant became frightened. Their interaction gradually became more sexual; when respondent tried to grab complainant’s breast, she said “no” and told him to stop. The complainant was afraid of triggering a violent response, so her response to the respondent’s conduct was muted. Respondent resumed sexual touching (stopping and starting each time the complainant said no again), culminating in him taking his penis out of his pants, when she said no and he let her go.
PROCEDURAL HISTORY: Acquitted at trial. Appeal dismissed at ABCA, 2-1 dissent.
ISSUES: Does the defence of “implied consent” exist for sexual assault?
DECISION: Appeal allowed, and conviction entered.
REASONS: Consent is part of both actus reus and mens rea. Actus reus is a) touching, b) of a sexual nature, c) without consent, the first two elements being objective and the third being the complainant’s subjective state of mind at the time of the touching (the accused’s state of mind is irrelevant for actus reus). The third element is evaluated with the complainant’s credibility in light of all the evidence; a reasonable doubt here can defeat the charge. As such there is only consent or no consent. No such thing as implied consent exists for sexual assault, since consent must be freely given. Since the complainant “agreed” to sexual conduct under fear of violence, there was no consent and the actus reus of sexual assault was established. The mens rea of sexual assault is general, consisting of an intention to touch (something objectively sexual) and knowing of/being wilfully blind to/being reckless about the complainant’s lack of consent. To make out a claim of mistaken belief in consent, it must be shown that the complainant communicated agreement to engage in sexual activity through either words or conduct (no means no). This must be evaluated in light of the statutory requirements of s. 273. Silence, passivity, ambiguous conduct, or the passage of time after a sexual advance was rebuffed cannot ground a claim of mistaken belief. Since the complainant said no multiple times, claiming mistaken belief had no air of reality.
RATIO: There is no defence of implied consent for sexual assault. A claim of mistaken belief in consent must have an air of reality to be posed to the finder of fact.
DISSENT OR CONCUR: L’Heureux-Dubé J. – any idea of consent in this case could only have been based on sexual myths (men have uncontrollable sex drives, women like complainant were asking for it, etc.), given the fear of the complainant as recognized by respondent. CA was particularly egregious in this regard. Consent to sexual activity cannot be based on myth, but must be grounded in the reasonable steps taken to ensure that consent exists.
McLachlin J.: concur with majority, but agrees with L’Heureux-Dubé’s treatment of sexual myths
