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SEXUAL ASSAULT - CONSENT DEFENCE


R. v. Ewanchuk, [1999] 1 S.C.R. 330 Lexum

...

The complainant, a 17-year-old woman, was interviewed by the accused for a job in his van.  She left the van door open as she was hesitant about discussing the job offer in his vehicle.  The interview was conducted in a polite, business-like fashion.  After the interview, the accused invited the complainant to see some of his work which was in the trailer behind the van.  The complainant purposely left the trailer door open but the accused closed it in a way which made the complainant think that he had locked it.  There was no evidence whether the door was actually locked.  The complainant stated that she became frightened at this point.  The accused initiated a number of incidents involving touching, each progressively more intimate than the previous, notwithstanding the fact that the complainant plainly said “no” on each occasion.  He stopped his advances on each occasion when she said “no” but persisted shortly after with an even more serious advance.  Any compliance by the complainant was done out of fear and the conversation that occurred between them clearly indicated that the accused knew that the complainant was afraid and certainly not a willing participant.  The trial judge acquitted the accused of sexual assault relying on the defence of implied consent and the Court of Appeal upheld that acquittal.  At issue here are whether the trial judge erred in his understanding of consent in sexual assault and whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.

Held:  The appeal should be allowed.


Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.:  

...

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea.  The actus reus of assault is unwanted sexual touching.  The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

The actus reus of sexual assault is established by the proof of three elements:  (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.  The first two of these elements are objective.  It is sufficient for the Crown to prove that the accused’s actions were voluntary.  

The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his behaviour.


The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.  


While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.


If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent.


The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.


The trier of fact may only come to one of two conclusions:  the complainant either consented or did not.  There is no third option.  If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven.  


No defence of implied consent to sexual assault exists in Canadian law.  


Here, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”.  This conclusion was an error.


To be legally effective, consent must be freely given.


 Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent.  Section 265(3) of the Criminal Code enumerates a series of conditions -- including submission by reason of force, fear, threats, fraud or the exercise of authority -- under which the law will deem an absence of consent in assault cases, notwithstanding the complainant’s ostensible consent or participation.  In a situation where the trier of fact finds that the complainant did not want to be touched sexually and made her decision to permit or participate in the sexual assault activity as a result of an honestly held fear, the law deems an absence of consent and the third component of the actus reus of sexual assault is established.  The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated.  While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective.  If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea.

The mens rea of sexual assault contains two elements:  intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.

The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent.  The defence of mistake is simply a denial of mens rea.  It does not impose any burden of proof upon the accused.  The accused need not testify in order to raise the issue.  Support for the defence may stem from any of the evidence before the Court, including the Crown’s case-in-chief and the testimony of the complainant.  However, as a practical matter, this defence will usually arise in the evidence called by the accused.

Consent is an integral component of the mens rea, but considered from the perspective of the accused. In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question.  


A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence.  The accused’s speculation as to what was going on in the complainant’s mind provides no defence.


There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea.  


For the purposes of the actus reus “consent” means that the complainant in her mind wanted the sexual touching to take place.  


In the context of mens rea -- specifically for the purposes of the honest but mistaken belief in consent -- “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused.  The two parts of the analysis must be kept separate.

Not all beliefs upon which an accused might rely will exculpate him.  Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Criminal Code.

The accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent.  If his belief is found to be mistaken, then honesty of that belief must be considered.  As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence.  If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent.  


Any other belief, however honestly held, is not a defence.  Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2.  


If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances.  If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.


Here, the accused knew that the complainant was not consenting before each encounter.  The trial judge ought to have considered whether anything occurred between the communication of non-consent and the subsequent sexual touching which the accused could honestly have believed constituted consent.  The trial record conclusively establishes that the accused’s persistent and increasingly serious advances constituted a sexual assault for which he had no defence.  But for his errors of law, the trial judge would necessarily have found the accused guilty.  Since a new trial would not be in the interests of justice, this Court can properly exercise its discretion under s. 686(4) of the Code and enter a conviction.

Whether the accused took reasonable steps to ascertain that the complainant was consenting is a question of fact to be determined by the trier of fact only after the air of reality test has been met.  Given the way the trial and appeal were argued, s. 273.2(b) did not have to be considered.

...


Jim O'Neil, LL.B.

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