Mr review 6 ignorance of law 6

When Fraud Vitiates Consent

• 
  Consent, otherwise obtained, can be vitiated
  
  • 
    Threats and Fear (MacFie)
    
  • 
    Abuse of authority, application of force and Fraud
    

R v Maboir 2012 SCC (supp)[One guilty of aggravated sexual assault if he fails to disclose HIV status b4 intercourse and there is a realistic possibility of transmission]

Issue: Whether an HIV positive person who engages in sexual relations without disclosing his condition commits aggravated sexual assault?

Decision: Person guilty of aggravated sexual assault if he fails to disclose HIV positive status b4 intercourse and there is realistic possibility of transmission. If HIV person has low viral count and condom, the threshold of transmission has not been met

Reasons:

• 
  Failure to advise a partner of one’s HIV status may constitute fraud vitiating consent. HIV poses a risk of serious bodily harm, the operative offence is aggravated sexual assault
  
• 
  8/9 complainants testified that they would not have consented had they knew he had HIV
  
• 
  What is the correct interpretation of “Fraud” vitiating consent to sexual activity in section 265(3)(c)?
  
  • 
    Test: 1) dishonest act (falsehood or failure to disclose HIV); and 2) deprivation (denying complainant knowledge which would have caused her to refuse sexual relations that exposed her to significant risk of serious bodily harm
    
  • 
    Criticism of test: uncertain and overbreadth
    
    • 
      Significant Risk: any risk? Or higher?
      
    • 
      Serious Bodily Harm: The more serious the harm, the lower the risk needed? Interrelated with risk.
      
  • 
    Interpretation of Fraud vitiating consent to sexual relations informed by 4 considerations:
    
    • 
      Purposes of the criminal law
      
      • 
        Punish wrongful act and guilty mind
        
      • 
        Relevant to sentence of life imprisonment
        
    • 
      Common law and stator history of the concept
      
      • 
        Evolution from law preferring to allow fraud to vitiate consent until Clarence whereby infected husband had sex with unknowing wife and was acquitted.
        
      • 
        New Rule: fraud could not vitiate consent unless it went to the “sexual nature of the act” or to the identity of the sexual partner (Clarence)
        
        • 
          Infliction of bodily harm required to have physical result
          
      • 
        Criminal code altered to respect more generous approach
        
      • 
        To hold that complainant consented to disease because she knew act was sexual affronts contemporary constitutional values
        
    • 
      Charter values, equality, autonomy, liberty, privacy, human dignity
      
      • 
        Sexual assault denies victim’s dignity as human being
        
      • 
        Court judges cannot now infer consent from the way the complainant was dressed or if she flirted
        
    • 
      The experience of other common law jurisdictions
      
      • 
        Other jurisdictions criminalize ACTUAL sexual transmission, when non-disclosure occurs.
        
      • 
        Or non-disclosure is categorized as bodily harm, rather than sexual offence
        
• 
  Solution:
  
  • 
    When should non-disclosure of HIC status amount to fraud vitiating consent under s 265(3)(c )?
    
    • 
      Cuerrier Test is valid
      
  • 
    TO fix its problems of uncertainty
    
    • 
      Active Misrepresentation Approach
      
      • 
        Unless one made a positive misrepresentation or lied – they would be criminally liable.
        
        • 
          Blurs lines of clarity, ie. Do gestures count?
          
        • 
          No principled distinction btw active/passive deception
          
        • 
          Eliminates deprivation element
          
    • 
      Case-by-Case fact based approach
      
      • 
        Does not remedy uncertainty
        
      • 
        Risks of conflicting judgements
        
    • 
      Judicial notice of Effect of Condom Use
      
      • 
        Condom use always negatives significant risk of serious bodily harm
        
      • 
        Rapidly changing state of science…
        
    • 
      Confine fraud to special relationships ie. One party is vulnerable = narrows too much
      
    • 
      Reasonable partner approach: what a reasonable and informed person in positive of HIV partner would expect? Objective, based on circumstances.
      
      • 
        Avoids problems of changing science, but still does not lay down a clear test. Also, reasonableness in heat of sexual moment may be mistaken
        
    • 
      Evolving common law approach:
      
      • 
        Building greater certainty to Cuerrier test by indicating when significant risk test is met
        
      • 
        Whether facts established “significant risk of serious bodily harm” = question of law
        
      • 
        Serious bodily harm: any hurt or injury, where physical or psychological, that interferes in a substantial way with integrity, health or well-being of victim
        
        • 
          No risk vs. high risk = realistic possibility of transmission, then significant risk est. and deprivation met
          
        • 
          The more serious the nature of harm, the lower probability of transmission needed.
          
• 
  Realistic possibility of transmission of HIV = depends on accused viral load and condom protection. If low and used, then realistic possibility of transmission negated
  
  • 
    Even if undergoing antiretroviral therapy, should use a condom
    
  • 
    Condom use + low viral load = precludes realistic possibility of transmission
    
• 
  Case at hand, viral load + condom = acquitted
  

• 
  POLICY: Strong disincentive to not get tested. Because once find positive result, forced to tell partner and unlikely to have sex
  
• 
  Pre Mabior:
  
  • 
    Cuerrier: Fraud exceptionally limited. Only vitiates consent when fraud relates to the nature and quality of the act
    
    • 
      Ie. If a doctor obtains consent to conduct breast examination, and conduct breast examination for sexual purpose = fraud
      
    • 
      Ie. Man says he an actor, she has sex with him. She testifies she would not have had sex if hadn’t known. = Not Fraud
      
  • 
    Majority: Dishonest act had effect of exposing person consenting to a significant risk of serious bodily harm
    
    • 
      Dissent: Dishonest act induced another to consent. (= low test)
      
    • 
      Dissent 2: Dishonest act must relate to the physical act (= most strict test)
      
  • 
    What is significant risk? What is serious bodily harm?
    
  • 
    How do we balance the need for information with risks of criminalization?
    
• 
  Difficulties with adopting “pure” approach to informed consent
  
  • 
    1. Radical expansion of common law (Frey/Jobidon debate)
    
  • 
    2. Contrary to the way people act – would criminalize a lot of conduct;
    
  • 
    3. Would increase stigmatization of those with STDs and marginalize them;
    
  • 
    4. Would deter people from finding out
    
• 
  Critiques of Mabior
  
  • 
    Is criminalization the right way to deal with public health problem?
    
  • 
    Punitive approaches simply drive people away from critical health and social support services
    
  • 
    Not clear for other types of STDs
    
  • 
    Not consistent with science – person who takes highly effective precautions to protect, with no intent to cause harm, can still be charged
    
  • 
    Whether SCC wants to admit it, people have sex without full information all the time. Why should law step in?
    
  • 
    Do people have duty to disclose before oral sex? Anal sex?
    

R v DC 2012 SCC (Supp) [Even if low viral load, must still use condom to avoid conviction]

Facts: DC load was undetectable, no condom use stated by victim. Accused said there was.

Issue: Should he be acquitted?

Decision: Acquitted. must follow test in Mabior, condom is required to preclude realistic possibility of HIV transmission.

Reasons: BUT BYD cannot prove if condom was used, because neither witness was credible. So AR not met bc crown couldn’t prove that there was no condom.

TH Review:

The fact that Sheena did not contract HIV: has no impact on whether the male is liable.
Assume Joe has a low viral load and uses a condom. Through no fault of Joe's, the condom breaks. Sheena contracts HIV. On these facts...

• 
  Joe is probably not guilty of sexual assault. Because Mabior makes clear that fraud goes to the risk.
  
• 
  However, Hutchison discusses “actual” bodily harm. Actual bodily harm is enough to convict. Bodily harm vitiate consent. Mabiour makes clear that if there is a high risk, you are guilty. However, Hutchison raises difficult question about when someone should be found guilty if there was a low risk, but still caused bodily harm.
  
• 
  Can fraud be vitiated when actual bodily harm occurs?
  

Vitiating Consent Continued

R v Hutchinson 2010 SCC (Supp)

Facts: Women has relationship with man, uses condom. Man pokes holes in condom bc wanted baby. Woman has an abortion. Woman suffered medical problems during procedure ie. Bleeding, severe pain.

Issue: #1: Was there consent? #2, If there was consent, was it vitiated by fraud?

Decision:

History:

First Trial

• 
  Man charged with sexual assault bc endangered life of Ms. C, so Aggravated sexual assault.
  
• 
  Found Acquitted, because consent to sexual intercourse
  

First Appeal

• 
  Allow appeal, return for new trial
  

Second Trial

• 
  Accused convicted. Sentenced to 18 months imprisonment
  

Second Appeal

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  Appeal rejected.
  

Appeal to SCC

• 
  SCC heard arguments on both sides, decision not yet rendered.
  

Reasons:

• 
  Roscoe JA:
  
  • 
    Voluntary agreement to engage in sexual activity in question must mean something more than consent to the application of force
    
  • 
    Consent entailed reasonably informed choice to participate in the activity. In the absence of consent, an act of sex is an act of assault. As a matter of both language and law, consent implies a reasonably informed choice, freely exercised
    
    • 
      She was entitled to control over her own sexual integrity and choose whether her sexual activity would include the risk of becoming pregnant through unprotected sex
      
    • 
      Evidence: She only consented to protected sex
      
    • 
      A choice to assume risks of protected sex are different than unprotected sex
      
  • 
    Application of Cuerrier test: TJ said Ms. C was exposed to pregnancy and in itself, pregnancy is not a serious bodily harm. BUT, she was actually pregnant.
    
    • 
      Did she suffer actual harm as a result of the deceit of Mr. H?
      
      • 
        Ms. Suffered morning sickness, emotional/psychological distress, had to get abortion, suffered bleeding, blood clots, severe pain, serious infection
        
        • 
          Pain and suffering was direct and foreseeable consequence of use of sabotaged condoms
          
  • 
    Appeal allowed. New trial
    
• 
  DR. BEVERIDGE JA (dissent)
  
  • 
    S 273.1 does not have elaboration of “Sexual activity in question”. Above qualifies sexual intercourse w/ or w/o condom.
    
  • 
    Plain and ordinary meaning do not reveal that Parliament intended the definition of consent
    
    • 
      Can’t say voluntary agreement includes reasonably informed choice, it goes too far. Confuse the legal test, and eliminates fraud altogether.
      
    • 
      Agree with analysis in Ewanchuck: Consent = voluntary agreement to sexual activity in question
      
    • 
      “consent implies reasonably informed choice, freely exercised” cannot be extract with respect to consent in cases of sexual assault
      
  • 
    Consequence: lead to complaints and prosecution who didn’t use effective contraceptives
    
  • 
    Vitiation of Consent by Fraud
    
    • 
      Distinguished from Cuerrier: life is simply not a sexually transmitted disease. Pregnancy is always a risk of intercourse. Fundamentally different than deceptive acts about the transmission or risk of transmission of HIV
      
    • 
      Complainant already exposed to risk of pregnancy
      
    • 
      Pregnancy can be life-altering, but does not vitiate consent
      
    • 
      A lie about contraception or vasectomy is not a matter of criminal law
      
    • 
      Unable to agree that there was some evidence for a trier of fact to find actual serious bodily harm
      
  • 
    Conduct = gross violation of trust. Morally reprehensible, but not offence of sexual assault.
    
  • 
    May give rise to civil liability
    
  • 
    There must be some evidence that reasonable jury could find that complainant did not consent or if she did, it was vitiated
    
  • 
    Pregnancy is a natural and predictable risk of sex
    
  • 
    Should be left to parliament
    

R v Hutchison 2013 NSCA

Reasons: Macdonald CJNS

• 
  Were his actions criminal?
  
  • 
    Sexual assault: motivated touching of another person without their consent
    
  • 
    Does “Activity in Question” = sex or more narrowly “unprotected sex”? , if latter, then she didn’t consent
    
  • 
    If provision prevents an accused from unintentionally violating his unconscious parten’ts requirement for him to wear a condom, then must be seen to prevent an accused from intentionally duping partner where pre req to consent = intact condom
    
  • 
    Proposed nature of sexual activity = protected sex
    
  • 
    Effort to prevent sexual exploitation by limited circumstances where victim said to have consented
    
  • 
    Maboir: Acknowledges charter implication, sexual assault not only an emotional/physical crime, also about the wrongful exploitation of another human being
    
    • 
      Court recognized that a person should not be labeled a criminal for every deception surrounding sex (ie. Lying about income, job, etc)
      
• 
  Principles:
  
  • 
    Consent under s. 273.1 "must be specifically directed to each and every sexual act" (J.A.)
    
  • 
    s. 273.1 is restricted to "active actual consent throughout every phase of the sexual activity" (J.A.)
    
  • 
    Deception that involves an "inseparable component" of a complainant's consent to sexual intercourse represents no consent under s. 273.1
    
  • 
    Sexual assault involves more than "a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being" (Mabior)
    
  • 
    "Irresponsible, reprehensible conduct" must not be condoned but at the same time, to be criminal, the deception must minimally be serious with serious consequences (Mabior)
    
• 
  Applied to case at hand: protected sex = essential feature of proposed sexual act, inseperable from component of consent
  
• 
  Hutchison claims that if it was the other way around, and the woman was charged = serious consequences. Court says, unlikely woman would get charged bc consequences of unintended pregnancy much more profound for mother than for father
  
• 
  Hutchsion claims that this interpretation renders consent induced by fraud redundant if complete awarenss of sexual activity for consent required? 1. S 265 applies to all assault, while s 273 is limited to sexual assault. 2. No problem with crown having 2 potential avenues to prove lack of consent
  
• 
  To settle decision with Maboir, who was acquitted: Mabior never presented as consent case, impossible to know how significant trier of fact weighed his deception. Criminal law targets only serious deceptions, and if risk of transmission is low, deception not worthy of criminal sanction.
  
• 
  Addresses Dissent: His approach does not lead to slippery slope. Deceptions only vitiate consent if there is fraud, which involves a significant risk of serious bodily harm according to cuerrier and Mabior.
  

Farrar J: Dissent:

• 
  Pull btw criminalizing morally bad behavior and concerns about complainants sexual autonomy
  
• 
  S 265(3)© protects accused person against over-criminalization and also protects the sexual autonomy of complainants
  
• 
  Disagree with crown for 4 reasons
  
  • 
    1. Sexual activity refers to physical sex act, not conditions or quality of the act
    
  • 
    2. Case is not like JA
    
    • 
      Crown stated she was “effectively” unconscious to act. = putting JA too far
      
  • 
    3. S 273.1 can be relied on where the complainants participation was involuntary only
    
  • 
    4. Confining cases like this to fraud analysis of 265.3.c = slippery slope concerns over criminalization that exists in sexual assault
    
• 
  Complainant agreed to “sex”. Error in law to say it included a condom or not.
  
  • 
    If the female was charged with lying about birth control, bodily harm component not met. Door swings both ways, unfair that only men criminalized
    
• 
  Consent vitiated by fraud? Currier test:
  
  • 
    1. Appellants conduct was dishonest. A reasonable person would find this action dishonest because contraception is an integral part of sexual relations
    
  • 
    2. Significant risk? Risk of pregnancy? Significant risk part passes – since risk of pregnancy from damaged condoms is higher than risk of pregnancy from intact condom.
    
    • 
      Serious Bodily Harm? Whether unwanted pregnancy on its won constitutes serious bodily harm on the evidence in this case?
      
      • 
        Could meet definition fo serious bodily harm
        
      • 
        He overrode complainants capacity to prevent it.
        
      • 
        His conduct was blameworthy enough to constitute fraud
        
• 
  Allow appeal on narrow ground. The required factual findings on fraud not made out. He would have ordered new trial
  

SCC Decision on Hutchinson

Unanimous in result – Hutchinson is guilty

4-3 Split on the route to guilt

Abella/Moldaver minority: Consent to sexual activity in question includes “manner in which touching carried out”. Must know whether or not there is protection “Everyone has the right to insist upon a condom as part of sexual activity” (problem: open flood gates to criminal culpability) Note: If you want a condom, and that’s a part of the sexual act – you should have one. And you both deal with consequences equally. - Did not agree to sex w/o condom, vitiated Criticism: Although it is certain, it may extend criminal law too far. Impact of Minority view on HIV (Mabior): IF you said you were going to wear a condom and you didn’t, your guilty – whether you have HIV or not. Not continuing with the sex act as the person wanted. S Argues that this gives it better protection – must do what the person asks you to do. If two men had sex w/o a condom = liable, but in majority, no risk of pregnancy = so no fraud vitiating consent. Probably wouldn’t be prosecuted if no harm was done ie not pregnant, ie no HIV

Majority: Minority approach contrary to mabior/cuerrier Consent: is to sexual activity, not whether or not there was protection Restraint and certainty demand we don’t go that way. Would open doors to criminal liability too broadly. Sexual activity is the ACT – not the contraception Deals with improper conduct as fraud Deprivation is making a woman pregnant or exposing to the risk of pregnancy Consent is vitiated when there is dishonesty + deprivation. Deprivation is making women pregnant. Exposure to pregnancy is harm in all cases. “Must be equally serious as deprivation recognized here” Note: Men cannot make the claim where woman get pregnant after lying to man. Financial claims, sadness or stress of being lied to is not enough. (means that Men cannot argue these things) Maybe if the man proves psychological harm.. Criticisms: Shouldn’t we leave this to parliament?? Maybe we should do something – we should do it properly.

Annotation, Janine Benedet, UBC

• 
  Was the lie material to the complainant’s decision to agree to sex?
  
• 
  Was the result an exposure to significant risk of serious bodily harm
  
• 
  Justice Farrar is right that at some point court must draw a line
  

Review:

Hutchison #1:

• 
  Does the need for voluntary agreement include reasonably informed choice?
  
  • 
    Would confuse legal test and apply 265.3 broader than should be
    
• 
  If victim gets pregnant, harm is likely to be caused?
  
  • 
    No pregnancy, issue more complicated
    

Hutchison #2:

• 
  NSCA focuses not on informed consent, but agreement to sexual activity in question
  
• 
  Concludes that Protected sex is different than Unprotected sex, and thus no consent given
  
• 
  This would not cover all fraudulent acts
  
• 
  Policy: what does this mean for males and females? Majority: Doesn’t include females okay.
  

Questions #1: Does Hutchison apply to women and men equally?

Question #2: Does Hutchinson apply to poor choices in protection (where lie made)?

• 
  Yea... I think I took my pill today…
  
• 
  Yea... This condom is good…
  

Question #3: Does it apply to same sex conduct?

• 
  I’m wearing a condom, but actually not (ignore HIV)
  

SCC:

• 
  Moldaver pushes accused to define the “activity” ie. “safe sex”
  
• 
  Mclachlin addresses analogy btw HIV and Pregnancy. Complainant attempts to draw line btw essential feature vs. non-essential feature
  

Sexual Assault Basic Key Points

1. 
   Must apply force intentionally
   
2. 
   Sexual nature determined OBJECTIVELY – no subjective knowledge required
   
3. 
   Must be an absence of consent – AR proven if complainant DID NOT consent (Ewanchuk)
   
4. 
   Consent can be vitiated in certain circumstances (Hutchison, Mabior)
   

Consent and Mens Rea

• 
  Consent can be ABSENT as a matter of fact or law eg. Law: Fraud vitiates consent where dishonesty and deprivation are present
  
• 
  Can accused raise MR argument, suggesting that he did not know fraud vitiated consent? No.
  
• 
  Accused can raise MR argument suggesting that he did not know she was NOT actually consenting even though it seemed she was.
  
• 
  You can raise MR defences only to Material Facts, when that element is material to the case.
  
• 
  1. Must be factual basis to argue mistake of fact re consent (Pappajohn/Osolin)
  
• 
  2. Mistake must be based on something that is LEGALLY allowed
  
• 
  3. Where consent is vitiated as a matter of law – accused is guilty IF he was aware of facts that negate defence. (not : statutory list, fraud, unconsciousness, bodily harm)
  
• 
  4. Wilful blindness about key fact (“I didn’t think she was threatened”) will not save you (Sansregret)
  
• 
  5. Valid type of mistake? Only 1: “I thought she COMMUNICATED yes” even though there was no consent.
  
  • 
    Ie. Or valid mistakes of fact on law ie. “I didn’t know I had a high viral load” etc.
    
• 
  Put the onus on people who are engaging in sex to KNOW if shes consenting.
  

Pappajohn v The Queen 1980 SCC p 633 [A subjective mistake as to the facts of consent warrants an acquittal; Accused perception of consent is relevant, mistake of fact open defence to rape; mistake of fact does not have to be reasonable, reasonableness is only evidence for/against view that belief was actually held/intent was lacking; No room in facts for Ambiguity which would allow for Mistake of Fact]

Facts: Accused (business man) met Complainant (Real Estate agent) for drunken lunch. Went to his house. She ran out naked, with hands tied behind back. He said she consent to foreplay and intercourse, gagging and binding was for stimulation, but she became hysterical and did not consent to this. Appeal to BCCA dismissed.

Issue: Is the accused’s perception of consent relevant to a charge under s 143 of code?

Decision: Accused perception of consent is relevant.

Reason: Dickson J

• 
  Crown: subjective belief of an accused is no party of case to be proved by Crown. Since reference to intention to proceed in absence of consent is lacking, statutory wording prevails over CL mental element
  
• 
  One cannot assume that there is not MR related to crimes of rape
  
• 
  Intention or recklessness must be proved in relation to all elements of the offence, including absence of consent
  
• 
  Mistake is a defence where it prevents accused from having MR which law requires. Mistake of fact avails accused who acts innocently, pursuant to flawed perception of facts but commits AR.
  
• 
  Defence should avail when there is honest belief in consent, or absence of knowledge that consent has been withheld
  
  • 
    Whether it is subjective perception or based on objective incorrect facts should be of no consequence
    
• 
  Must a defence of honest mistaken belief be based on reasonable grounds? No
  
• 
  Not clear how one can properly relate reasonableness to rape (true crime, not crime of negligence)
  
• 
  If jury finds mistake, whether reasonable or unreasonable, there should be no conviction
  
• 
  Policy reasons (cant be bull shit mistake)
  
  • 
    1. Cases in which mistake advanced in answer to rape = must be few
    
  • 
    2. If woman in her own mind withholds consent, but conduct shows consent, it may be unjust to convict.
    
  • 
    3. Unfair to jury and accused to ask the jury to ignore actual subjective belief in favour of objective “Reasonable man” belief
    
• 
  The reasonableness of the accused’s belief is only evidence for/against view that belief was actually held and intent was lacking
  
• 
  Issue of MR is always before the jury. Mistake of honest belief challenges factual aspect of offence, did/not she consent?
  
• 
  Circumstantial evidence to support a plea of belief in consent: (Not mistake of fact)
  
  • 
    1. Necklace and car keys found in living room
    
  • 
    2. Blouse neatly hung in clothes closet
    
  • 
    3. Other clothes folded
    
  • 
    4. None of clothes damages in slightest
    
  • 
    5. In house for number of hours
    
  • 
    6. Made no attempt to leave
    
  • 
    7. Did not leave when he undressed
    
  • 
    8. No evidence of struggle
    
  • 
    9. Did not suffer physical injuries
    
• 
  Conclusion: New Trial
  

Concurring: McIntyre J:

• 
  Where is this evidence to be found? Not with complainant who denies consent.
  
• 
  Two evidence stories opposed
  
• 
  TJ right in concluding that there was not sufficient evidence to justify putting mistake of fact to jury. Left issue of consent to them.
  

Ratio: No ambiguity in the facts. Mistake of Fact not open this defence to rape.

TH: The SCC unanimously agreed that it is not necessary for an accused's belief in consent to be reasonable.

Why can’t Pappajohn raise mistake of fact?

1. 
   In a trial, jury guided by available evidence
   
2. 
   Live issues are those for which there is a possibility of the jury finding in the accused’s favour. No matter of defence can be considered unless it meets the standard of a live issue.
   
3. 
   Eg. Who shot the victim = live issue. Unless accused testifies he shot victim in self-defence. So, it is not a live issue, not necessary to instruct jury to consider “Did accused shoot V?”
   
4. 
   Judge chooses whether there is SOME evidence that would support defence/live issue
   
5. 
   CASE AT HAND: C says I resisted in every sense, A says she consented. Mistake REQUIRES accused to be CONFUSED about some fact. There is no version of events that says “I got it wrong”. Its either CONSENT or no CONSENT. No evidence to support that anyone made a mistake/was ambiguous.
   
6. 
   We leave this to the judge because:
   
   1. 
      Appeals: judge makes error about defence that was not available – no new trial
      
   2. 
      If both consent and HMB are left to jury, acquittal more likely
      
   3. 
      Focus: deal with it as consent case
      

The Evidentiary Burden

• 
  The crown bears the burden of proving guilty BRD
  
• 
  To simplify trials, juries not instructed on defences if there is no evidence to support them
  
• 
  Thus, accused has an “Evidentiary burden” to show some evidence capable of supporting a defence
  

Section 265(4) of Code came into force in 1983:

• 
  Reasonableness of mistake needs to be considered in assessing subjective knwoledge
  
• 
  If accused challenges that he believed complainant consented to conduct, a judge if satisfied that there is sufficient evidence and that, if believed by jury, evidence would constitute a defence, shall instruct jury to determination of the honest of accused’s belief, to consider presence of absence of reasonable grounds for that belief.
  
• 
  Does this change Pappajohn? No. Consistent. Reasonableness goes to the evidence. Simply makes this instruction to the jury mandatory, based on Sufficient Evidence.
  

Osolin v The Queen 1993 SCC p 640 [s 265(4) does not infringe presumption of innocence or right to trial by jury; SCC split on whether diametrically opposed facts preclude HMB. Cory = precludes. McLachlin says Not logically impossible, must meet “air of reality”]

• 
  Cory J (Dissent): Applicable to all assault – not just sexual
  
• 
  A defence for which there is no evidentiary foundation should not be put to jury
  
• 
  Pappajohn held that defence of mistaken belief in consent should only be put to jury if adequate evidentiary foundation
  
  • 
    Does not mean that evidence must be emanating from source other than accused
    
  • 
    Must be supported by evidence beyond the mere assertion of “I thought she consented”
    
• 
  Leaves burden on crown for all essential elements (MR and AR BRD)
  
• 
  Air of Reality:
  
  • 
    Cory J (Dissent on this point): In diametrically opposed version of facts there cannot be “air of reality”. Can only arise when A and C tell essentially same story.
    
    • 
      Conflicting stories Preclude Defence of honest but mistaken belief
      
    • 
      Mistake only arises when fact generally correspond
      
  • 
    McLachlin J (Majority on this point): It is not logically impossible to have this defence. It might occur rarely, but jury could accept parts of both testimonies
    
    • 
      No matter of defence can be considered by trier of fact unless it meets “air of reality” standard
      
    • 
      Suggests more liberal version
      
• 
  Now – statute makes it harder and harder to rely on HMB at all.
  

Sansregret v The Queen 1985 SCC p 642 [Willful blindness regarding consent is culpable; if in the circumstances (ie. Happened before) accused should have known]

 Facts: Ex boyfriend breaks in, uses knife, she has sex with him on 2 occasions to calm him down and save her own life. She did not consent. TJ: Accused argues honest mistake of fact. He saw what he wanted to see, heard what he wanted to hear and his conduct shows he believed she consented. He was willfully blind. According to Pappajohn – must acquit.

Issue: Did the TJ err in acquitting Accused?

Decision: yes – willful blindness applies. Dismiss appeal.

Reasons:

• 
  Application of willful blindness: there was need for inquiry and he ignored it
  
• 
  One time alone – difficult to construct that accused knew she was consenting out of fear
  
• 
  But since it happened before, he should have that knowledge. He was aware of the likelihood of complainant’s reaction to his threats. To proceed w/ sex in such circumstances is self-deception to point of willful blindness.
  
• 
  No constructive knowledge required
  

Ratio: Willfull blindness is sufficient MR for sexual assault if in the circumstances (ie. Happened before), the accused should have known.

Question: WHAT IF he asked her – Are you consenting out of fear? And she said no? Would he likely be acquitted?

R v Seaboyer 1991 SCC p 645

Facts:

• 
  SCC held that “rape shield” provision of s 276 violated charter. S 276 = evidence concerning sexual activity of C with any other person but accused could only be admitted if it 1) rebutted evidence of C’s sexual activity 2) established identity of person who had sex w/ C on occasion in charge; and 3) relates to consent that accused alleges he believed was given by C.
  
• 
  SCC held that s 277 was constitutional: prohibits evidence of sexual reputation to challenge credibility of C
  
• 
  How do the impugned evidentiary provisions relate to the defence of honest but not necessarily reasonable belief in C’s consent?
  

Issue: Is s 276 unconstitutional?

Decision: Yes – makes evidence inadmissible that is necessary for defence

Reason: (McLachlin J)

• 
  Defence of honest belief requires evidence precluded by s 276
  
• 
  Overshoots the mark and renders inadmissible evidence which may be essential to defences and a fair trial
  
• 
  In exchange for elimination of possibility that judge will draw illegitimate inferences from evidence, it exacts the real risk that an innocent person may be convicted.
  

Dissent: L’Heureux-Dube J:

• 
  The relevant evidence prohibited is irrelevant
  
• 
  No relevant evidence regarding defence of honest but mistaken belief is excluded
  
• 
  It is a defence of honest, not reasonable belief.
  
• 
  Before defence can be put to jury, TJ must decide there is an air of reality. If they are operating in an environment that is free of rape myth and stereotype about women, an evidence excluded would not satisfy the “Air of reality” that must accompany defence, nor would it provide reasonable grounds for jury to consider in assessing whether belief was honestly held.
  

Ratio: s 276 is unconstitutional.

Note: Parliament amended this section with Bill C-49. It was still not wholly accepted by the courts.

Honest Mistaken Belief

• 
  Two Types:
  
  • 
    Mistake of Fact that he believed she was consenting
    
  • 
    Mistake where consent is taken away by law of a relevant fact
    
    • 
      Ie. HIV: I didn’t know I had HIV; I didn’t know I had a high viral load
      
    • 
      Ie. Bodily Harm: I didn’t intend to cause bodily harm
      
    • 
      Ie. Drunkenness: I didn’t know she lacked the capacity (Esau)
      

Ewanchuk Key Points

• 
  There is no such thing as implied consent - You cannot believe that there was implied consent
  
• 
  Consent must be somehow communicated
  
• 
  You can argue “I thought that she said yes”
  
• 
  TH 9.2: In Ewanchuk, the SCC says that for HMB must show belief that "complainant communicated consent". This means, as a matter of law, that: Ambiguous words can establish the possibility of believing that consent was communicated.
  
• 
  Conduct can ground consent. It is part of the way in which communication takes place.
  
  • 
    Sexual assault = “any intentional force” of a sexual nature
    
  • 
    Should communication of consent include conduct? Yes – otherwise there will be too many sexual assault cases.
    
• 
  “Silence passivity and ambiguous conduct cannot ground a mistake”
  
  • 
    Sankoff: NOT entirely true. No need to go this far. We have “reasonable steps”
    
  • 
    Greater steps required where there is silence, passivity or ambiguous conduct.
    

Notes: Aim of Law: shift societal consciousness about these important limits. People take advantage without knowing its illegal.

New Statute

S 273.1(2):

• 
  No consent is obtained in the following 5 situations:
  
  • 
    (a) Agreement expressed by words of conduct of other person  (b) Complainant lacks capacity [ie. Is incapable due to intoxication  (c) Consent induced by abuse of trust, position or authority (d) Expresses lack of agreement (e) Expresses lack of agreement to continue.
    
• 
  Note: According to Ewanchuk most of these are already vitiated by CL: Must look to C’s state of mind. So, only C) when consent is induced by abuse of trust, position or authority is new.
  
• 
  Note: Kills availability for defence for MR.
  
• 
  Example:
  
  • 
    X and Y engage in kissing and some sexual contact
    
  • 
    Y becomes uncomfortable, and indicates desire to stop
    
  • 
    X continues, argues afterward that he had been with Y before and she always starts by saying no, and ends up saying yes.
    
  • 
    Consent has been vitiated. Because she has expressed lack of agreement to continue, so can’t argue defence of mistaken belief.
    
  • 
    Any mistake that flows out of these 5 situations is a MISTAKE OF LAW.
    
• 
  Ewanchuck says consent depends on C’s state of mind
  
• 
  Most of section deals with situations where C would not be consenting under Ewanchuk
  
• 
  BUT! Ewanchuk is Factual Absence of Consent. Section 273.1 creates LEGAL absence of Consent.
  

S 273.2(A)

• 
  1. Accused cannot say I was drunk, and that’s why I didn’t know she was consenting (consistent with 100 years of common law
  
• 
  2. Accused cannot say I was reckless or willfully blind (consistent with common law)
  

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 C was consenting
  
• 
  EFFECT: criminalizes an omission to ascertain consent, by imposing a duty to take reasonable steps
  
• 
  Focus is NOT fully objective
  
• 
  Accused must act reasonably but only on the basis of what he or she perceives.
  
• 
  Eg. A is engaging in sexual activity with B. A asks B if he can do a particular act. A thinks he hears “yes” but B has said nothing
  

Christine Boyle “The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality really mattered” 1999 p 652

• 
  273.2(b): the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the C was consenting
  
• 
  What is reasonable steps? – Seems to link to MR, but is behavioral
  
• 
  Darrach assessed constitutionality of reasonable steps:
  
  • 
    1. Far from satisfied that sexual assault is a stigma offence
    
  • 
    2. But if it is, enough subjective fault is still required to satisfy const. standards
    
  • 
    Accused not need take “all” reasonable steps
    
  • 
    WHAT? Should be: steps person would take to avoid making an unreasonable mistake
    

R v Malcom 2000 [Recklessness vs. Willful blindness; quasi- objective test for “Reasonable steps”]

• 
  Recklessness: accused subjectively perceives a danger or risk that consent is not present, but proceeds in any event
  
• 
  Willful blindness: it is obvious in the circumstances that there is no true consent, but accused does not confirm that lack of consent bc he wants to be able to say that he did not “know” there was no consent
  
• 
  S 273.2(b) injects objective standard for unreasonable sexual behavior. Accused will not have mistaken belief defence where he did not take reasonable steps in the circumstances known to him to ascertain whether C was consenting.
  
• 
  Capture those who are aware of precence of certain circumstance which would led reasonable person to take further steps
  
• 
  Limits application of honest belief
  
• 
  Imposes positive duty on those who undertake sexual relations to ensure partner is consenting
  
• 
  Must be considered where there is an air of reality to accuseds assertion of honest belief, and the accused is not willfully blind or reckless, but circumstances call into question the reasonableness of his actions
  
• 
  Quasi objective test:
  
  • 
    1. Circumstances known to the accused must be ascertained
    
  • 
    2. If reasonable man was aware, would he take further steps b4 proceeding with sex?
    
  • 
    If yes, and A did not do so, then he is not entitled to defence of HB in consent. If no, or maybe, then accused not required to take further steps and defence will apply
    

R v Cornejo 2003 ONCA p 655 [Reasonable steps may require positive action, depends on circumstances known to A at time]

Facts:

• 
  A charged with sexual assault and breaking and entering. Acquitted on both counts. Appeal by crown on basis that TJ left defence of honest but mistaken belief in consent for jury’s consideration when there was no air of reality to that defence.
  
• 
  He went to her house, Door was unlocked. She closed her eyes, she let him take her pants off. When he tried to have sex, she said no. She told him to get out. Then he left.
  
• 
  She alleged that she awoke drunk to being half naked and him trying to have sex with her. She has no memory of the above. She was wearing a tampon when he attempted to penetrate her.
  
• 
  Tj relied on pelvic movements as evidence satisfying air of reality.
  

Issue: Was there consent?

Decision: There was no consent. Reasonable steps were not taken. The air of reality of consent was not satisfied.

Reason:

• 
  Evidence points to absence of consent
  
• 
  Lifting of pelvis by woman who is asleep and he knew she was not interested in sex w/ him, cannot give rise to assumption of consent
  
• 
  No air of reality that he honestly believed she was consenting
  
• 
  Purpose of “Reasonable steps” is to ensure there is clarity on part of both partners
  
• 
  Replaces assumptions associated with silence and passivity
  
• 
  Reasonable steps – sometimes positive action in all circumstances or maybe in situations of resistance.
  
  • 
    Reasonable based on circumstances known to A at time
    
    • 
      He knew she was not interested in sexual relationship
      
    • 
      She said “what the hell are you doing here”
      
    • 
      She had been drinking
      
  • 
    He ought to have taken steps BEFORE he engaged in sexual activity to ascertain whether she was consenting
    
  • 
    She said no and physically stopped him from kissing her mouth
    
  • 
    Any reasonable person would have stopped to take more steps
    
  • 
    No person would assume she wanted her clothes removed
    

Ratio: Reasonable steps may require positive action, depends on circumstances KNOWN to A at time.

Ewanchuk: Asserting "No Means No" at the Expense of Fault and Proportionality Principles. 1998 (Supp) [Current Sexual Assault Law is Repressive] by Don Stuart

• 
  E is Triumph for those who believe that sexual assault laws should rigorously enforce “no means no”
  
• 
  E Determines that little or no weight paid to crim principles of no punishment without fault and proportionality
  
• 
  SCC has placed severe limits on mistaken belief defence = makes sexual assault laws unjust to the accused
  
• 
  Are ambiguous situations rare in sexual assault?
  
  • 
    SCC says yes. True misunderstandings arise infrequently
    
  • 
    But complex diverse nature of consent
    
  • 
    TJs deciding whether to criminalize conduct where parties had miscommunicated
    
  • 
    Did SCC get Ewanchuk test right?
    
    • 
      Hypothetical #1:
      
      • 
        Two teenagers say they are open, friendly and affectionate. Jack kisses jill, she says nothing. Jill opens two buttons on her blouse bc she is claustrophobic. Jack thinks its positive motion. He touches her breast. Jill slaps him.
        
    • 
      Hypothetical #2: Same situation, but it was Jill who kissed Jack.
      
• 
  Consent
  
  • 
    Whether C consented is tested subjectively. What was in HER mind?
    
  • 
    In H1: if trier of fact believes that C did not want to be kissed or touched, Crown has performed its burden of proving absence of consent
    
  • 
    In H2: even if she says she did not consent to kiss, her kissing first should produce reasonable doubt. Her slap right after touching, should lead trier of fact to find no consent to touching: what is in her mind is material
    
• 
  Mistaken Belief in Consent
  
  • 
    MR for sexual assault = 2 elements
    
    • 
      1: intention to touch AND 2, knowing of, reckless or willfully blind to, lack of consent on part of person touched
      
    • 
      An accused whose defence the C has consented is entitled to have HB defence considered where trier of fact finds lack of consent.
      
  • 
    Changes:
    
    • 
      1. For the purposes of the honest but mistaken belief in consent defence, consent is different from consent in AR and means that C affirmatively communicated by words or conduct agreement to sexual activity.
      
      • 
        H1: since Jill did not communicate consent to kiss or touch, A has no defence no matter what he thought
        
      • 
        H2: he could argue he believed her opening blouse was communication of consent to further touching
        
    • 
      2. Consent is limited by s. 273.1(2) of Code
      
    • 
      3. A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and provides no consent
      
      • 
        H2: No defence of mistaken belief even in second hypothetical since opening blouse was ambiguous. We have criminalized seduction and definition of sexual assault is dangerously broad..
        
    • 
      4. Accused cannot rely upon purported belief that the C’s expressed lack of agreement to sexual conduct in fact constitution an invitation to more persistent of aggressive conduct.
      
    • 
      5. Continuing sexual conduct after someone has said NO is at minimum reckless conduct which is not excusable.
      
• 
  Conclusion:
  
  • 
    The law is repressive
    

Dippel 2011 ABCA [What is reasonable is gathered from the circumstances known from the accused and the context]

• 
  Facts: Complainant went to party, went to sleep in bedroom, woke up to D touching her. Barely knew him. D argued that C’s conduct was ambiguous.
  
• 
  TJ Acquits, (failed to determine whether he took reasonable steps to ascertain consent)
  

Decision: CA over rules

Reasons:

• 
  Because D knew C was asleep when he laid down next to her. Took no reasonable steps.
  
• 
  “Fact that individuals were complete strangers and she was asleep requires reasonable person to clearly ascertain consent”
  
• 
  No air of reality for defence of mistaken belief because reasonable steps not taken.
  

• 
  Unnecessary to cut off ambiguous conduct, let reasonable steps assessment do the work
  

R v Esau [1997] SCC (Supp) [Plausible evidence without contradiction (due to lack of C’s memory) warrants air of reality and TJ presenting jury with defence of honest but mistaken belief.]

Facts: Second cousin at C’s home for party. C was drunk and high. R though C was able to control what she was doing. R says they kissed and C invited him to bedroom where they had consensual sex. C denied kissing and denied invitation. She said she had no memory, and said she would not have consented since they were related. R charged with sexual assault. R convicted by TJ. CA quash conviction order new trial. CA find air of reality to defence of honest but mistaken belief. TJ must charge jury on every defence that has an air of reality, whether or not it is raised.

Issue: Is honest but mistaken belief applicable?

Decision: The defence is applicable - Dismiss Appeal and put new trial.

Reason: Major J

• 
  Plausible evidence comes from testimony of C and R and surrounding circumstances. R’s evidence amounts to more than bare asserting of belief in consent. C’s evidence did not contradict R, she had no memory. No evidence of violence or struggle.
  
• 
  Evidence no diametrically opposed
  
• 
  Crown argued that since she was intoxicated she was incapable of consenting.
  
• 
  But A’s evidence may lead he honestly believes she was.
  
• 
  Totality of evidence that gives rise to air of reality. Absence of violence alone could not give rise to defence.
  
• 
  Court cannot make a determination that defence is impossible when C is intoxicated.
  
• 
  Dismiss Appeal
  
• 
  The basis for the crowns case of no consent? Consent is vitiated as a matter of law by lack of capacity
  
• 
  So his defence: I didn’t thinks he was drunk = is possible (para 15)
  

Dissent: (McLachlin J)

• 
  Evidence did not give air of reality
  
• 
  Only issue is whether she consented.
  
• 
  S 273.2 precludes accused from defence of mistaken belief in consent if he did not take reasonable steps, in this case it would seem reasonable to ascertain whether her participation represented actual consent. No steps taken
  
• 
  Appeal should be allowed
  
• 
  Judges are not allowed to put defences to juries unless there is a foundation for them. Threshold is not ANY evidence, but evidence that makes defence plausible, or realistic
  
• 
  Mere assertion of belief is not enough – bare statement etc. Only when sufficient evidence presented by accused, his testimony or circumstances
  
• 
  When does the defence arise??
  
  • 
    1. Consider the purpose of the defense
    
    • 
      designed to meet the situation where honest miscommunication of non-consent
      
    • 
      Based on co-existence that 1) C did not consent and 2) A believed she consented
      
    • 
      Must be additional evidence on how the accused honestly made that mistake. Evidence of a situation of ambiguity.
      
  • 
    2. What we mean by consent
    
    • 
      Connotes voluntary agreement
      
    • 
      Thought pattern in mind of C is not focus
      
    • 
      C’s verbal and non-verbal behavior, what inference can be drawn
      
    • 
      In situations of ambiguity = mistaken belief in consent defence available
      
      • 
        Explicit consent precludes sexual assault
        
      • 
        Explicit refusal precludes honest mistake defence
        
      • 
        C is unconscious or incoherent = defence cannot be raised
        
      • 
        Lack of capacity as child = defence not be raised
        
      • 
        Force/Duress = defence cannot be raised
        
      • 
        Conscious but passive C = strong case that passivity without more does nto constitute consent so defence cannot be raised. Cannot equate submission w/ consent. Insufficient basis for defence!
        
      • 
        Ambiguous conduct which can be read in different ways = Defence okay
        
      • 
        Ambiguity arising from external circumstances = defence okay
        
• 
  Requirements of the Defence:
  
  • 
    1) evidence that accused believed C was consenting
    
  • 
    2) evidence that C in fact refused/was incapable of consenting
    
  • 
    3) evidence of state of ambiguity
    
  • 
    Lack of memory coupled with drunkenness do not constitute such evidence. To say she appears to consent because she does not remember is speculation.
    
• 
  Allow appeal – affirm conviction.
  

Ratio: Plausible evidence without contradiction warrants air of reality and TJ presenting jury with defence of honest but mistaken belief.

Key Point: There was borderline cases where facts are difficult. Hard to define what reasonable steps he should have taken to ascertain if she was too drunk ie. Make her do a sobriety test etc

Variation of Plummer (raised in Esau) [What is reasonable will depend on: The circumstances known to the accused AND the surrounding context]

• 
  X threatens A to have sex with B “or else”. B is told that “A wants to have a good time w/ a real player”. B arrives and A agrees to everything throughout.
  
• 
  A did not legally consent s 265(3)  Threats
  
• 
  What steps should B have taken?
  
  • 
    B cannot take consent from X. X is guilty of sexual assault (party liability). B would not be guilty of sexual assault because A appears to be consenting.
    
• 
  Lesson: What is reasonable will depend on: The circumstances known to the accused AND the surrounding context.
  
• 
  The more ambiguity = more required to ensure consent is present.
  

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