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Criminal - Mistake. R. v. Othman
In R. v. Othman (Ont CA, 2025) the Ontario Court of Appeal considered the defence of mistaken belief, here wrt sexual consent in an 'air of reality' jury standard context:[46] The defence of mistaken belief in consent posits a situation in which there was no consent, but the accused, having taken reasonable steps to ascertain consent, believed honestly but mistakenly, that the complainant had communicated consent. In order to assess whether, in this case, there was an air of reality to that defence, I first discuss some of the relevant concepts that inform the elements of the defence. I then turn to the approach to whether the defence has an air of reality in cases of diametrically opposed – consent or no consent - narratives.
(iii) Consent
[47] Consent, the foundational principle upon which Canada’s sexual assault laws are based, is analyzed from a different perspective at the actus reus stage and the mens rea stage: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 1; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.
[48] The actus reus of the offence of sexual assault is committed where “touching of a sexual nature occurred, and … the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching”: R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 8, at para. 46; G.F., at para. 25. In so far as consent is concerned, the question at the actus reus stage is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.
[49] The mens rea element of the offence focusses on the accused’s mental state – the consent question being whether the accused knew of, or was wilfully blind or reckless as to, the lack of consent: Barton, at para. 87; G.F., at para. 25.
(iv) Mistaken Belief in Consent
[50] The defence of mistaken belief in consent is a “denial of mens rea”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 43-44. It recognizes that in some circumstances “it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but mistakenly believe that the complainant consented” and therefore for the actus reus of the offence to have been committed without the necessary mens rea: R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at para. 80.
[51] The defence requires that the accused had “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton, at para. 91 (emphasis in original). The principal relevant considerations are the complainant’s behaviour which is said to have involved communication and the “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: Park, at para. 44 (emphasis in original); Barton, at para. 91.
[52] Not any mistaken belief in the existence of consent, even if honestly held, will support the defence. The defence is limited both by the common law and by provisions of the Code that tightly restrict “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent”: G.F., at para. 1; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24. Mistakes as to what amounts in law to consent – such as a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton, at paras. 98-100. Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence, including requirements that the belief was based on the complainant’s actual expression by words or conduct, that the belief did not arise through recklessness or wilful blindness, and that the accused took reasonable steps to ascertain that the complainant was consenting. As the Supreme Court stated in Barton, at para. 104, “no reasonable steps, no defence”.
(v) The Air of Reality Test and the Defence of Mistaken Belief in Consent in Cases of Conflicting Narratives
[53] The same air of reality test applies to the defence of mistaken belief in consent as to any other defence: Cinous, at para. 57. The defence will be left with the jury only if it has an air of reality. There must be an evidential foundation that, if accepted by the jury, can satisfy the requirements of the defence in light of the legal limitations on its availability. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent: Barton, at para. 121; Davis, at para. 81.
[54] Deciding on which side of the air of reality line a particular case falls is important. For both practical and policy reasons, judges have been cautioned against being too eager to put the defence of mistaken belief in consent to the jury because it is the rare exception, rather than the general rule, that a sexual assault will have been committed by accident: Park, at para. 21.
[55] The defence may arise in cases where the complainant and the accused have given similar versions of the facts, and the only material contradiction is in their interpretation of what happened. In such cases “the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent”: Park, at para. 26.
[56] In other cases, the events that occurred are described in diametrically different terms by the complainant and the accused. In some of those cases, the issue will simply be one of consent or no consent and the trial becomes, essentially, a pure question of credibility as between the complainant’s version and that of the accused with no third possibility of a mistaken belief in consent arising: Davis, at paras. 84-85. As the Supreme Court noted in Park, at para. 26:[C]ourts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent. [57] But the existence of diametrically opposed versions does not, in and of itself preclude the possibility of there being an air of reality to the defence of mistaken belief in consent, where “a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence” or, put differently, where it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: Park, at para. 25. One important consideration in deciding whether splicing or cobbling together is realistically possible is whether “the acceptance of one version [would] necessarily involve the rejection of the other”: Park, at para. 25.
[58] An example of when “cobbling” can occur is when the accused testifies to having taken reasonable steps to ascertain consent and the complainant has no memory of what transpired. In such a case, the cobbled together version does not include mutually excusive strands. In R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 19, the majority explained:The absence of memory by the complainant as to what happened in the bedroom makes it easier to “cobble together” parts of both the accused and complainant’s evidence to reach a reasonable conclusion of honest but mistaken belief. Any number of things may have happened during the period in which she had no memory. The evidence of the accused combined with the lack of memory of the complainant and, as previously noted, the absence of violence, struggle or force, when taken together makes plausible and gives an air of reality to the defence of mistaken belief. [59] In Davis, at paras. 85-86, the court highlighted another consideration relevant to deciding whether it is realistically possible to “splice together the evidence [from two diametrically opposed versions of what occurred] to create a third version of events in which the accused honestly but mistakenly believed the complainant consented”. The nature of the evidence must go beyond the mere assertion that the accused believed the complainant consented and include evidence of a “situation of ambiguity”. The court endorsed the statement of McLachlin J. (as she then was) in Esau, at para. 63 (although made in dissent) that:There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant’s lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. [Emphasis added.] [60] The requirement that a version of events, spliced together from different and contrasting sources of evidence, present a situation of ambiguity before the defence of mistaken belief in consent will reasonably arise has been explained in some cases as the equivalent of a situation where the parties versions differ not about what happened, but how to interpret what happened: R. v. Gilbert, 2024 BCCA 310, at para. 36, quoting with approval R. v. Hoffman, 2024 BCCA 98, at para. 148, adopting the statement in R. v. Comin, 2022 BCSC 530, at para. 34; R. v. Sheikh, 2025 ONCJ 10, at para. 99.
[61] To summarize, the mistaken belief in consent defence may have an air of reality even in a case which primarily presents as one of consent or no consent based on diametrically opposed narratives. But in the words of Park, at para. 25, it will only have an air of reality if it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”. That will not be the case where the cobbled together scenario consists of strands of evidence that are mutually exclusive in the sense that acceptance of one would involve the rejection of the other. Further, the cobbled together scenario must be a “situation of ambiguity” – one in which there is both no consent and evidence that explains how the accused took reasonable steps but nonetheless could honestly have mistaken the complainant to have communicated consent of a nature required by the Code.
[62] If cobbling or splicing together of evidence from diametrically opposed versions in a manner that respects these parameters cannot be achieved, there is no air of reality to the defence. “If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and the defence of mistaken belief in consent should not be put to the jury”: Park, at para. 25. . 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.
...
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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