2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11

Sexual Assault

1. 
   Definition
   
2. 
   Essential elements (MR, AR)
   
3. 
   Evidentiary and procedural rules
   

Complainant/survivor: reports a crime (use where conviction is in dispute/not yet reached) against the accused. Once there is a conviction: victim/survivor and offender.

• 
  Presumption of innocence at play
  
• 
  Survivor is a better word, but not used in Code.
  

• 
  The offences were limited and different for males and females
  
• 
  There were evidentiary rules and procedures that embodied myths and stereotypes
  
• 
  The main offences included rape, attempted rape, sexual intercourse with a female under 14, or between 14 and 16 if she was previously a “chaste character”
  
• 
  Rape: a male person having sex with a female, who is not his wife, and without her consent.
  
• 
  A complainant could be questioned about her prior sexual activities
  

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  The intent or purpose of the accused may be relevant in determining whether the act was sexual
  
• 
  Inferences can be drawn from the nature of the touch, circumstances, threats, force etc
  

ACTUS REUS

R v Ewanchuk 1999 SCC

Held

The focus is on whether the complainant’s words or conduct have positively confirmed his/her willingness to participate, rather than expressly reject it. Consent is concerned ONLY with the complainant’s perspective Where she testifies she did not consent and the trier of fact is convinced beyond a reasonable doubt that the complainant did not consent, the absence of consent is established Where the complainant ‘consents’ because she believes she will otherwise suffer violence, this is absence of consent It is open to the accused to argue that her actions and words raise reasonable doubt as to the assertion. Where this doubt is raised, the crown has not proved its case The accused’s perception is only relevant once consent has been ESTABLISHED, because it works as a denial of mens rea based on mistake of fact

R v J.A. 2011 SCC: consent requires a conscious, operating mind. Advance consent to sexual contact that occurs while unconscious is not valid consent. The provisions in the code indicate that Parliament intended that consent would require the complainant to be conscious throughout the activity in question to consent to “each and every sexual act”

Three elements of sexual assault actus reus:

1. 
   Touch
   

• 
  Objective – Ewanchuk
  

2. 
   Of a sexual nature
   

• 
  Objective – Chase
  

3. 
   Without consent
   

• 
  Subjective standard of the complainant – Ewanchuk
  
• 
  S.273.1 of the CC (consent provisions)
  
• 
  No such thing as implied consent
  
• 
  Must have operating mind and be conscious – J.A.
  

Consent Provisions

s.273.1

(1) Consent means voluntary agreement (2) No consent is obtained where it is: expressed by someone other than the complainant the complainant is incapable of consenting the complainant is induced by abusing a position of trust, power, or authority the complainant expresses a lack of agreement or a lack of agreement to continue the activity

MENS REA

R v Ewanchuk 1999 SCC: mens rea is (i) intention to touch and (ii) knowing of, or being reckless or willfully blind to a lack of consent by the person touched.
May be negated by mistake of fact  defence can only be brought where there is an air of reality, and in this context that means more than “I believed she was consenting”. There must be evidence capable of explaining how the accused could have mistaken the complainant’s lack of consent as consent (Davis).

Historical Analysis

Pappajohn v the Queen 1980 SCC

• 
  the CC was silent as to the mens rea of rape, so SCC applied the Sault St Marie principles: in the absence of contrary intent, subjective mens rea is required.
  
• 
  Held: intention needed to be proved in relation to all elements of the offence, including consent. In this case, there was no evidence to advance the defence.
  

Sansregret v the Queen 1985 SCC

• 
  Was there an honest belief?
  
• 
  Held: if the accused’s lack of knowledge as to consent is due to their willful blindness, then no consent is established. There can be no defence advanced.
  

Parliament changed the law in 1992 to include objective reasonable steps:

s.273.2

It is NOT a defence to a charge where the accused believed the complainant consented where: The accused’s belief arose from: Self induced intoxication Recklessness or willful blindness The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain the complainant was consenting

Net effect of the provision + common law: requires honesty AND reasonableness

R v Darrach 1998 ONCA

• 
  Challenged s.273.2(b)
  
• 
  Held: mens rea can be imposed with an objective aspect, this is not a stigma offence. Furthermore, the objective element of taking reasonable steps is also personalized.
  

R v Ewanchuk: a belief that silence, passivity or ambiguous conduct constitutes consent provides no defence. An accused cannot rely on lapse of time as a change of heart.
R v Malcolm 2000 Man CA

• 
  Held: s.273.2 provision requires the court to apply a quasi-objective test
  
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  Test when mistake of fact is asserted:
  
  • 
    1) circumstances of the accused must be ascertained
    
  • 
    2) if a reasonable man was aware of the same circumstances would he take further steps to obtain consent before proceeding with the sexual activity?
    
  • 
    3) if yes, then the accused is not entitled to the defence of honest mistaken belief of consent
    
  • 
    4) if no or maybe, then the defence will apply, MR could be negated.
    

** note that the SCC has not taken a stance on this quasi-objective test of consent.

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