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Criminal - Sexual Offences - Consent. R. v. D.S.
In R. v. D.S. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here were "(t)he central issue for the jury was consent".
Here the court considered an evidentiary issue of 'discreditable conduct' (similar fact evidence):[24] It is well established that evidence of bad character or discreditable conduct of the accused beyond what is alleged in the indictment is presumptively inadmissible. To present such evidence, the Crown must show that the purpose of presenting this evidence to the trier of fact goes beyond demonstrating the accused’s general propensity to commit acts forming the subject matter of the charge. The Crown must show that the probative value of the evidence in relation to a live issue in the trial outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. J.H., 2020 ONCA 165, at paras. 52-55.
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[34] The evidence was clearly relevant, and relevance was rightly conceded by the appellant’s counsel on appeal. On the Crown’s application to admit evidence of prior discreditable conduct, it was presumed, based on the appellant’s police statement, that his defence would be honest but mistaken belief in communicated consent. This defence, which was indeed put to the jury at the appellant’s trial, is only available in circumstances where the accused took reasonable steps to ascertain whether the complainant was consenting. Such steps must be reasonable in the circumstances then known to the accused: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 104; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 40-44. As a result, the trial judge reasonably concluded that, in the circumstances of this case, the fact that two years before the alleged offence the complainant explained to the appellant that she was not interested in sexual activity with him because they were like brother and sister was relevant and properly formed part of the evidentiary mix that the jury was entitled to consider. . R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here considering sexual consent:[34] ... As the trial judge pointed out, even if the appellant and the complainant had agreed to meet at the marina to engage in sexual activity, this would not constitute consent because broad advance consent does not amount to consent to the sexual activity: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 99. .... . R. v. Degale
In R. v. Degale (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal from an acquittal for aggravated sexual assault, here on a consent/mens rea issue:[15] It is helpful to an understanding of the trial judge’s error to begin with a summary of certain relevant points from this court’s decision in H.W. As I will explain, the trial judge erred in considering evidence (or a lack of evidence) that could only have been relevant to the respondent’s belief in J.K.’s consent at the mens rea stage, when no defence of honest but mistaken belief in consent had been advanced.
[16] H.W. was also a Crown appeal, but from an acquittal for sexual assault after a jury trial. At issue was the jury instruction with respect to mens rea. After deciding that the defence of honest but mistaken belief in communicated consent was not available to the accused (a view that was shared by both Crown and defence counsel), the trial judge instructed the jury that the Crown was required to prove that the accused knew of or was wilfully blind or reckless as to the absence of the complainant’s consent. Zarnett J.A. for this court rejected the Crown’s argument that the mens rea for sexual assault is satisfied once the defence of honest but mistaken belief in communicated consent under s. 273.2 of the Criminal Code is unavailable. He emphasized that, since at least the Supreme Court’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, the Crown is required to establish as an element of the offence of sexual assault that the accused knew that the complainant was not consenting to the sexual act or was wilfully blind or reckless as to whether the complainant consented, irrespective of whether the defence of honest but mistaken belief in communicated consent is available. Zarnett J.A. stated that “[the Crown’s] legal burden remains, even if the displacement of a defence (or its unavailability) makes conviction a ‘virtual certainty’ and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea”: at para. 60.
[17] Zarnett J.A. went on to emphasize, at para. 86, that, where the knowledge element is at issue the trial judge must “ensure that the jury [considers] only evidence that [is] relevant to that issue, in a way that [inoculates] them from legal error.” This includes ensuring that any evidence of the accused’s mistaken belief in consent is “removed from the factual mix the jury [considers] on this issue, so as not to allow an unavailable defence in through the back door”. The trial judge must also “guide the jury as to how to approach the knowledge element on the basis of the evidence they [can] properly consider”. At paras. 90 and 93, he noted that any belief that does not meet the requirements of s. 273.2 of the Criminal Code is not a defence, and that “[c]are must thus be taken, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, not to, for example, point the jury to evidence of belief in consent in their consideration of mens rea…”.
[18] Zarnett J.A. noted that, once evidence of belief in consent is “removed from the evidentiary mix”, “it may be necessary to provide the jury with additional guidance on how to approach the knowledge element”: at para. 94. He endorsed the observations of the Alberta Court of Appeal in R. v. Barton, 2017 ABCA 216, 55 Alta. L.R. (6th) 1 (“Barton ABCA”), rev’d on other grounds, 2019 SCC 33, [2019] 2 S.C.R. 579, that where mistaken belief in consent is not a live issue, and provided the jury is satisfied that all required actus reus elements have been met, a trial judge can instruct the jury that, if they are satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity, they should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting or was reckless and chose to take the risk. Should more be required, the jury instructions should identify what the Crown must then prove in respect of the accused’s mens rea: at para. 96. Zarnett J.A. also referred to what Bennett J.A. said in R. v. MacIntyre, 2019 CMAC 3, leave to appeal refused, [2019] S.C.C.A. No. 346, at para. 64:In consent-or-no-consent cases … if the trier of fact accepts the complainant’s evidence that there is no consent, the knowledge element is easily proven. This supports the suggestion in footnote 105 of Barton ABCA that in the absence of a mistake of fact defence, juries may be told that if they accept the evidence of a complainant on the issue of consent, they will have little difficulty finding the element of knowledge proved. [19] In H.W., this court determined that the trial judge erred in inviting the jury to consider evidence related to the accused’s mistaken belief in consent when both the Crown and the defence agreed that the defence of honest and mistaken belief in communicated consent did not arise. The jury was not told that the evidence of belief was not exculpatory or a defence, or that it must be removed from the evidentiary mix. Instead, the trial judge pointed to such evidence and told the jury it could be considered. . 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. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court considers the 'contemporaneity rule' regarding sexual consent:The Relevance of the Text Messages Does Not Offend the Contemporaneity Rule
[74] I am also persuaded that the trial judge erred by accepting the submissions of the Crown and complainant’s counsel that the earlier expressions of consent were not relevant as a matter of law because consent must be given at the time of the sexual touching (the “contemporaneity rule”). This rule has no application to the lines of reasoning I have described. Neither of those lines of reasoning depend upon the theory that the consent the complainant expressed earlier was the consent provided in the motel. They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during the meeting in the motel room. The Alberta Court of Appeal rejected a similar overextension of the contemporaneity rule in McKnight. The Alberta Court of Appeal commented, at para. 261, that this kind of error “conflates the law of consent with the law of evidence.” The Court in McKnight, at para. 261, cited Professor Lisa Dufraimont’s observation made in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at p. 328, that “the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.” R. v. Ewanchuk is one of the leading authorities insisting that consent must relate to the complainant’s subjective state of mind at the time of the sexual activity: 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481, at para. 26. Yet in that decision Major J. recognised, at para. 29, that, “the complainant’s words and actions, before and during the incident” can be considered in determining whether a complainant has consented at the time of the sexual activity. So long as the earlier words or action are relied upon because they have a tendency in logic and human experience to support the likelihood that the complainant consented at the time of the sexual activity, they are not rendered legally irrelevant by the contemporaneity rule. In my view, the trial judge misapprehended the contemporaneity rule, erring in law. . R. v. Gordon
In R. v. Gordon (Ont CA, 2024) the Ontario Court of Appeal usefully sets out the actus reus of sexual assault, and the elements of consent:[3] The actus reus of sexual assault requires the Crown to prove three elements: (1) touching, (2) of a sexual nature, and (3) in the absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25. The first two elements are objective while the third element – consent – is subjective: Ewanchuk, at paras. 26-27. The consent element of the actus reus is only concerned with the complainant’s perspective and state of mind toward the touching at the time it occurred: R. v. G.F., 2021 SCC 20, at paras. 25, 29. Capacity to consent is a precondition to subjective consent: G.F., at para. 45. To have capacity to consent a complainant “must be capable of understanding four things: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant’s partner or partners; and (4) that they have the choice to refuse to participate in the sexual activity”: G.F., at para. 57. . R. v. MacMillan
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers sexual consent [CCC s.273.1-273.2]:[48] At the second stage, the trial judge concluded that the words spoken before the sexual acts in issue “are wholly irrelevant, highly prejudicial to the administration of justice, and inadmissible.” I agree.
[49] The appellants’ submission reflects a misinterpretation of consent. Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question at the time the sexual activity occurred.” As McLachlin C.J., writing for the majority, stated at para. 66 of R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, “The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity” and, at para. 53, “[T]he only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” (italics in original).
[50] Thus, consent must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57. Barton, at para. 88, makes clear that it is a mistake of law to suggest that the complainant could give broad advance consent to whatever the accused wanted to do to her. The only relevant period for ascertaining consent is while the touching is occurring.
[51] The complainant’s flirtatious behaviour at the bar is not an indicator of consent. As the trial judge said in his ruling:A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted. [52] To some extent, the appellants seek to carve out an exception for unconventional sex. They say that the complainant’s comments and prior conduct support the fact that the violence was consensual. The admission of the comments was necessary, they submit, so that the jury would know that the activity shown on the video was what she had talked about and wanted to occur.
[53] The fact that the sexual act was unconventional does not open the door to prohibited evidence. As the trial judge put it:[T]he fact that the sex a complainant ultimately engaged in is unconventional does not alter the playing field. The accused suggests that the jury’s not knowing that the complainant communicated earlier that she likes and engages in BDSM will make their claim that she later invited it from them and that they honestly believed that she was consenting to it incredible. I cannot accept this argument. As the Alberta Court of Appeal stated in R. v. Goldfinch (2018), 363 C.C.C. (3d) 406, 2018 ABCA 240 at para 40, aff’d (2019), 55 C.R. (7th) 215, 2019 SCC 38 at paras. 58-60, “admitting evidence to dispel the inference of the unlikelihood of consent is no different than introducing such evidence to support the inference of an increased likelihood of consent.” If this argument were to prevail, it would mean that women who engage in unconventional sex are less worthy of the protection of the law then other women…. [The accused’s] credibility is not enhanced by saying that the complainant told him twice that she likes and engages in BDSM. But the potential prejudice occasioned by showcasing the extent of the complainant’s unconventional sexual interests is palpable. [54] With respect to the defence of mistaken belief in consent, the focus shifts to the mental state of the accused. To make out this defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct. As Moldaver J., writing for the majority, articulated in Barton, at paras. 92-94:[I]t is appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
... [I]n seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred….
However, great care must be taken not to slip into impermissible propensity reasoning. The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. [Citations omitted. Emphasis in original.] [55] The trial judge properly excluded the evidence under s. 276.
[56] The day the trial judge released his reasons excluding the evidence, the appellants moved for a reconsideration. Although raised at several points during the trial, the trial judge’s decision did not change on reconsideration. The trial judge did not err by preventing cross-examination on the earlier communications.
[57] A suggestion that the complainant gave broad advance consent to sexual activity is not just a “dressed up” version of the twin myths, it is wrong in law. . R. v. S.B.
In R. v. S.B. (Ont CA, 2023) the Court of Appeal considered sexual consent (in split but concurring decisions, with the majority at paras 30-69):2. Legal Principles
[48] Section 273.1(1) of the Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1), and, as Karakatsanis J. stated in G.F., “there is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent or incapacity”: at para. 63. Section 273.1(2) provides that no consent is obtained in certain circumstances, including if (a.1) the complainant is unconscious; or (b) the complainant is incapable of consenting to the activity for any reason other than that they are unconscious.
[49] Being awake, although necessary, is not sufficient. Proof of intoxication or of a complainant’s lack of memory are not enough to establish lack of capacity, although evidence of both is relevant: see G.F. at para. 86; Kaczmarek at paras. 33-34; R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244 at para. 65, aff’d 2021 SCC 19, 71 C.R. (7th) 118. To have capacity to consent to a sexual act, the complainant must have an operating mind, capable of understanding (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the participants; and (4) that she has the choice to refuse to participate: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 36-37, 66; G.F., at paras. 29, 43, 47, 55-58.
[50] The Supreme Court, in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, observed that the absence of consent is subjective, and that the complainant’s evidence that they did not consent is a matter of credibility to be weighed in light of all the evidence, including the complainant’s words and actions before and during the incident, and by reference to “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: at paras. 29, 61. With respect to consent, where the complainant testifies that they did not consent, the question is one of credibility. The evidence of other witnesses, including the accused, about the “totality of the complainant’s conduct” can be considered to determine whether it is consistent with the complainant’s claim of non-consent. As the court noted in Ewanchuk, at para. 30, however “[t]he accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry”.
[51] With respect to capacity to consent, while the complainant will often provide relevant evidence, the question is not whether she subjectively believed that she had or did not have capacity, but whether, based on all the evidence, the Crown has proven lack of capacity beyond a reasonable doubt. The evidence of an accused person can be relevant both to the assessment of the complainant’s credibility, and as circumstantial evidence to be considered on the question of capacity. While the complainant’s evidence and their credibility are important, the court must consider all the relevant evidence, including as in this case, the observations of other witnesses of the complainant’s consumption of alcohol, level of intoxication and conduct, to determine whether the complainant lacked the capacity to consent when the sexual act occurred: see, for example, C.P., at paras. 56-57; Kaczmarek at paras. 40-45; and R. v. F.B.P., 2019 ONCA 157 at paras. 4-6. Although not required, in some cases there is expert evidence on the issue of capacity: see, for example, R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237.
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