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Criminal - Mistake. R. v. Abu-Qaddum
In R. v. Abu-Qaddum (Ont CA, 2024) the Ontario Court of Appeal dismissed a sexual assault conviction where the defendant argued mistaken belief of consent:[4] The trial judge found that the appellant was reckless or wilfully blind as to the complainant’s consent and therefore had the requisite mens rea for the offence. This precludes any air of reality to the defence of mistaken belief in communicated consent, because mistaken belief in consent cannot arise from an accused’s own recklessness or wilful blindness as to the complainant’s consent: s. 273.2 of the Criminal Code, R.S.C. 1985, c. C-46. . R. v. Marchant
In R. v. Marchant (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here in an interesting case of 'failure to provide the necessaries of life' [CCC s.215] by paramedic first responders.
In this specific context, the court considers the defence of 'mistake of fact':[57] The real issue in this case was mens rea. The central defence was that the appellants held an honest, reasonable, but mistaken belief that the victim was not suffering from a penetrating wound.
[58] Of course, when it comes to penal negligence, a reasonably held honest mistake of fact will constitute a complete defence. Again, this is because the law will not punish the “morally blameless”: A.D.H., at para. 154. Charron J. captured this concept in Beatty, at paras. 37-38:However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.
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In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care. [Emphasis added.] [59] Therefore, to provide a full defence, the mistake of fact must not only be honestly held, but it must also be reasonably held. I will come back to this concept when discussing the second issue. . R. v. J. B.
In R. v. J. B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal jury sexual assault appeal where the issue was one of 'honest but mistaken belief':[15] A defence of honest but mistaken belief in consent is a denial of the mens rea of sexual assault: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 42-44. The honest but mistaken belief must be that the complainant “actually communicated consent, whether by words or conduct”: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 91 (emphasis in original).
[16] The court will consider the complainant’s actual communications and the evidence “explaining how the accused perceived that behaviour to communicate consent”: Barton, at para. 91, quoting R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 44, per L’Heureux-Dubé J. (emphasis in original). Section 273.2 of the Criminal Code provides that reasonable steps must have been taken to ascertain consent and that there must be evidence of words or conduct by which the complainant expressed consent: see Barton, at para. 104.
[17] For there to be an "air of reality" to the defence of honest but mistaken belief, there must be: “(1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting”: R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 14, quoting Osolin, at pp. 648-49, per McLachlin J. An absence of memory on the part of the complainant as to what happened may make it “easier to ‘cobble together’ parts of both the accused and complainant's evidence to reach a reasonable conclusion of honest but mistaken belief”: Esau, at para. 19.
[18] In this case, the appellant testified that the complainant was an active and willing participant in sexual intercourse, was on top of him, and as soon as he realized the complainant was falling asleep, he stopped and put a blanket on her. The complainant admitted that although she remembered the appellant asking her if she wished to engage in sexual intercourse, she did not remember all that happened and that, during the sexual encounter, there may have been times where she was awake, but she does not recall what happened. The complainant agreed that the appellant had not caused her any physical injuries.
[19] On this evidence, the trial judge herself properly raised the issue because there was evidence from the complainant that she did not consent to the sexual acts and evidence that, if believed, the appellant honestly but mistakenly believed the complainant was consenting. Moreover, there is some possibility of cobbling the two stories together given the complainant’s evidence that, “there's moments where either I could hear or occasionally see what was going on, but then there were other moments where I just - I had no idea”.
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