The actus reus for sexual assault is (3) unwanted (2) sexual (1) touching (Ewanchuk).
(1) TOUCHING – First, regarding “touching”, sexual assault (CC 271) is a form of assault (CC 265), and mere touching constitutes an “application of force” for the purposes of assault (R v Burden in annotated code). Whether there was touching is determined objectively (Ewanchuk).
(2) SEXUAL NATURE –
Second, the “sexual” requirement is objective. An assault is sexual in nature, that is, where a reasonable observer would, in light of the circumstances, view it as such (Chase). It is irrelevant whether the accused considered the touching to be sexual in nature.
Relevant considerations include the part of the body touched, the nature of the contact, the situation, words and gestures, threats with or without force, and motive of the accused (e.g. sexual gratification). Motive is not determinative (Chase)
The “sexual nature” requirement is generally easy to meet (R v V – dad grabs kid’s genitals to teach him not to grab other’s genitals).
Third, “unwanted” means that the complainant did not consent – voluntarily agree – to the sexual activity in question (CC 273.1(1)). It concerns, that is, the subjective state of mind of the complainant (not the accused) (Ewanchuk).
The representations of a 3rd party do not constitute the complainant’s consent (CC 273.1(2)(a), CASE)
The following all vitiate consent:
The application of force (CC 265(3)(a))
Threats or fear (CC 265(3)(b))
Fear (CC 265(3)(b)) need not be reasonable (subjective fear), need not be communicated – established where the complainant believes herself to have only 2 choices: comply or be harmed (Ewanchuk)
Fraud (CC 265(3)(c))
Failure to disclose HIV+ status before having sex vitiates consent by fraud where there is: (Currier)
(1) a dishonest act – falsehoods or a failure to disclose
(2) deprivation – denying the complainant knowledge which would have caused her to refuse sexual relations that exposed her to a significant risk of serious bodily harm.
A “significant risk of serious bodily harm” means a “significant risk of transmission”. It is absent where the accused’s viral load is low and a condom is used. It is present where a condom is not used while the viral load is low or where a condom is used but the viral load is high (Mabior).
Saying “no” or otherwise expressing, by words or conduct, a lack of agreement (CC 273.1(2)(d); Ewanchuk)
Retraction of consent (CC 273.1(2)(e))
Because consent may be retracted, and it is impossible to retract consent while unconscious, consent cannot be given while unconscious (R v JA; see also incapacity – CC 273.1(2)(b))
The mens rea for sexual assault includes (1) an intention to touch and (2) knowledge of or willful blindness to the complainant’s lack of consent (Ewanchuk).
With respect to the second requirement, honest but mistaken belief in consent (CC 265(4)) is a defense which negates the mens rea for sexual assault (Ewanchuk).
ACTIVE -- Consent in the context of mens rea must be active. That is, sexual touching does not constitute sexual assault where the accused honestly believed that (or where there is a reasonable doubt that) the victim affirmatively communicated her agreement to the touching. Belief that silence, passivity or ambiguous conduct constituted consent is no defense (Ewanchuk).
ONGOING -- Consent must also be ongoing. If there was a ‘no’, consent must be re-established (Ewanchuck; CC 273.1(2)(e))
AWARENESS OF VITIATION See also the other provisions above, regarding factors which vitiate consent. If the accused is aware of any of these factors, the defense fails. For example, if the accused is aware that the complainant’s consent is induced by abusing a position of trust, power or authority (CC 273.1(2)(c)), the defense fails.
WILFUL BLINDNESS -- The honest but mistaken belief in consent defense fails where the accused was wilfully blind to the complainant’s lack of consent. Wilful blindness arises where a person has become aware of the need for some inquiry but declines to make the inquiry because he does not wish to know the truth (Sansregret; CC 273.2(a)(ii)).
REASONABLE STEPS -- The accused must take some reasonable steps, “in the circumstances known to the accused at the time”, to ascertain the complainant’s consent, before engaging in sexual activity (CC 273.2(b)). This does not imply, however, that the accused’s honest but mistaken belief in consent be reasonable. Where the accused takes some reasonable steps to ascertain consent, but nevertheless comes to an unreasonable yet honest mistaken belief that the complainant has consented, the defense may succeed (Darrach; Cornejo)
Criticism: One would have thought that a requirement to take “reasonable steps” would imply a requirement not to make an unreasonable mistake, but the ONCA found otherwise. A person can take some reasonable steps, still be left with an unreasonable belief that the complainant consented, and be acquitted on this basis. (Boyle and MacCrimmon)
AIR OF REALITY -- As is the case with all defences, a judge must only put the defence of honest but mistaken belief in consent to the jury (or where there is no jury, to himself) if it bears an “air of reality”; if there is some evidence in support of the accused’s belief such that a trier of fact, acting reasonably could entertain a reasonable doubt (Pappajohn, Ewanchuk, Cinous).
BURDEN -- As is the case with all defences, the tactical burden of proof for the defence of honest but mistaken belief in consent lies with the accused. It is up to the accused, that is, to raise some evidence in support of the defence. The persuasive burden of proof, however, rests on the crown. To secure a conviction, that is, the crown must prove beyond a reasonable doubt that one of the elements of the defence is absent – that in fact there was knowledge or wilful blindness with respect to the complainant’s lack of consent (Osolin, also drawing from Tran re: the defence of provocation).
Charter Concerns
CC 273.2(b) does not violate the Charter. See Darrach, plus Boyle and MacCrimmon’s criticism of the case.
Regarding constitutionality of rape shield provisions, see Seaboyer, and also pg. 669 of annotated code.
