MISTAKE -
Mistake of fact is a common law defence, which applies to all offences and offers a full defence. The burden is on the A to meet the air of reality of threshold for the judge to charge the jury on the defence.
The air of reality test requires that the defence be plausible and have some basis in the evidence, in order for the TJ to charge the jury. Simply, is there enough evidence, if believed, for the defence to function? Once the air of reality test is met, then the Crown will have the burden of trying to disprove the relevant evidence. The jury can convict if they do not believe the D's evidence, or believe the Crown's argument disproving the relevant evidence.
R v KUNDEUS [2012] SCC
FACTS
|
A sold drug to undercover cop, drug he actually sold was a less serious drug (mescaline not LSD). How does this differ from BEAVER? A knew he was trafficking something he knew was illegal in some way. From BLONDIN? We have two different classes of drugs, not a situation where he suspects a restricted drug, and the A believes it’s a lesser category he’s selling. A argues he should have defence of mistake of fact.
|
RULING
|
Majority rejects this defence. Presumption is that you intend consequences of your actions. Not interested in a claim unsupported by tangible evidence. Finds enough mens rea to convict.
DISSENT (LASKIN)
The dissent is important [it’s why we’re reading this case]. Early statement that Mens Rea and Actus Reus have to match. Prepared to accept defence of mistake of fact. Can’t rely on generalized claim to sell drugs. Need MR and AR of the same crime. Holds mistaken belief need only be honestly held (reasonable isn’t the test). Laskin claims A should be charged with attempting to traffic mescaline. (Attempt = intent + some act beyond mere preparation).
|
RATIO
|
Mistake of fact can arise anytime knowledge forms some part of the circumstances (but is mainly invoked in the context of sex assault).
|
RAPE & SEXUAL ASSAULT
In 1983, rape was replaced by sexual assault in the CC. New sexual assault in CC differed from old rape definition in key ways:
-
Stopped making rigid distinctions between kinds of acts (heterosexual intercourse formerly viewed as most severe)
-
Marital exemption was abolished
-
Offence became gender neutral (not just against women by male offenders)
-
Requirement of non-consent retained from old offence of rape
This can raise the question of whether A knew the victim wasn’t consenting, or was mistaken that they had. But there was a push to change old notion of consent (where not fighting back could be construed as consent) to “voluntary agreement to participate in consensual activity”.
Claim of mistake of fact under new sexual assault provisions means that for the A to argue mistaken consent, A is essentially saying the victim wanted contact to occur. How did mistake of fact work under the old regime? See PAPPAJOHN.
R v PAPPAJOHN [1980] SCC
FACTS
|
A charged with raping a real estate agent. Victim testifies she resisted his advances throughout. A testified that he believed victim consented until bondage, and no intercourse took place thereafter.
|
RULING
|
Held for the Crown - the jury should be instructed that reasonableness can only go to credibility of Accused’s assertion in an honest belief. On these facts, there was no “air of reality” to the defence of mistake of fact. A must directly assert mistaken belief in order to engage the defence. Conviction affirmed.
Policy concern = Case from a time when female rape complainants were routinely cross-examined about their personal sexual history. On the stand, their credibility would be undermined by any reported sexual activity. Court also held myths and stereotypes about women which were perpetuated by the SCC at 9-15 (women claiming rape because they’re ashamed they were slutty).
|
RATIO
|
Old test for mistake of fact: the mistake must be honestly held, but need not be reasonable. Only need reasonable evidence of honest belief.
|
The court was not saying there has to be a third party to corroborate assault, just that there must be admissible evidence beyond merely a statement by defence counsel to invoke the defence of mistake of fact. However, a statement by the A while under oath is sufficient.
After this case, introduction of statute which requires instruction that reasonability is related to honesty of belief. In 1983, rape is replaced by sexual assault provisions.
AR
|
MR
|
Application of force
|
Intentional
|
Circumstances of a sexual nature
|
None
|
Without consent
(subjective state of mind)
|
Knowledge
|
Shift in judicial attitudes regarding proving consent, from a resistance requirement to broader understanding: no means no, silence means non-consent, etc.
R v LETENDRE [1991]
TJ found Crown had failed to prove non-consent, said: "no may mean no, but sometimes it may mean maybe, or try again in a little while.”
But, things start to change in 1992:
Consent was defined as voluntary agreement. Section 273.2(b) of the Code, enacted in 1992, states that it is not a defence to a charge of sexual assault, sexual assault with a weapon, or aggravated sexual assault that the accused believed that the complainant consented where the accused “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”
R v EWANCHUK [1999] SCC
FACTS
|
A brought a 17-year-old woman into his van for a job interview. After the interview A invited the woman to his trailer, where he made a series of advances. Each time she would say "no" to his advance and he would stop but then start again. She testified at trial that during her time in the trailer she was very afraid and thus tried to project a confident attitude. Before she left, A paid her $100 and told her not to tell anyone.
At trial, A successfully argued that, although the woman had initially said "no" to his sexual touching, because he had continued and she had failed to object further this constituted "implied consent". The acquittal was upheld at appeal on 2-1 basis, with Justice John McClung commenting that "it must be pointed out that the complainant did not present herself to A or enter his trailer in a bonnet and crinolines" and that A's conduct was "less criminal than hormonal". The Crown appealed as of right on the issue of an implied consent defence.
|
RULING
|
Held for the Crown. Major, writing for the majority, defines non-consent as a subjective state of mind of the complainant, and that's all the Crown has to prove as an element of the actus reus. This is proven by the testimony of the complainant, and the question is the credibility of their testimony. As for the mens rea of the offence, the Court argues that the definition of consent as voluntary agreement means that for the defence of mistake of fact to work, the A has to have had a belief in the complainant's voluntary agreement. Consent can be shown in one of two ways:
-
the "complainant in her mind wanted the sexual touching to take place"; or
-
"the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused".
As such there was no air of reality to the A's belief in the complainant's voluntary agreement based on the facts, and thus there is no requirement to consider s 273.2(b).
L'Heureux-Dubé, in a concurring judgment, held that the defence could not be used unless the A took sufficient steps to ascertain consent. Here, the A did not make any attempt to ensure that there was consent when he moved from a massage to sexual touching. She also castigated McClung's opinion severely, arguing that it relied on myths and stereotypes about women and sexual assault.
|
RATIO
| -
Non-consent is determined based on the complainant’s subjective state.
-
There is no defence of implied consent in sexual assault.
|
What kind of actions say "yes"? Stereotypes can offer protection to the A. However, the s 273.2(b) "reasonable steps" provision militates against this.
R v DARRACH [2000] SCC
An unsuccessful s. 7 Charter challenge to constitutionality of reasonable steps provision establishes that this provision is constitutional.
Share with your friends: |
