Honest But Mistaken Belief in Communicated Consent

From Criminal Law Notebook

General Principles

See also: Consent in Sexual Offences

The defence of honest but mistaken belief of consent creates a third alternative to the choice between whether the alleged victim consented to the sexual contact.

A believe in consent is a matter of the state of mind of the accused.[1] The defence of honest but mistaken belief "rests on the accused's subjective perception of that factual situation" of non-consent.[2]

At common law, the defence is a form of "mistake of fact", which if true, would have rendered the conduct lawful.[3]

The defence is available where there is evidence of a "denial of consent, lack of consent or incapacity to consent" which is interpreted as consent, as well as "evidence of ambiguity or equivocality" showing the possibility of mistaken belief without being wilfully blind or reckless.[4]Nor can it be "tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2".[5]

The defence is a denial of the mens rea of an offence of sexual assault.[6]

Thus, the defence requires:[7]

  1. evidence that the accused believed the complainant was consenting (ie. the belief must be held "honestly", considering the objective factors under s. 273.2(a))[8];
  2. evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
  3. evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.

It is not sufficient to simply have a subjective belief of consent.[9]

Positive Evidence of Consent is Necessary
An accused cannot simply assert a belief in consent to raise the defence. It must be supported by the "some degree of other evidence or circumstances".[10]

Silence is Not Consent
It is not acceptable to rely on a "belief that silence, passivity or ambiguous conduct constitutes consent".[11] Such finding is a reversible error of law.[12]

  1. ↑ R v Dippel, 2011 ABCA 129 (CanLII) at para 13
    R v Nguyen, 2017 SKCA 30 (CanLII) at para 8
  2. ↑ R v Pappajohn, 1980 CanLII 13 (SCC), [1980] 2 SCR 120, per Dickson J (in dissent), at p. 157
    Nguyen, supra at para 8
  3. ↑ R v Pappajohn [1980] 2 SCR 120, 1980 CanLII 13 (SCC), at pp. 134, 139
    J.A. at para 48
  4. ↑ R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777 at paras 79, 88
    R v Davis, 1999 CanLII 638 (SCC), per Lamer CJ, at para 86
    Ewanchuk, supra at para 65
  5. ↑ Ewanchuk, supra at para 65
  6. ↑ Davis, supra at paras 80
  7. ↑ Davis, ibid. at para 81, 86
    Esau, supra per McLachlin J, at para 63 - in dissent, but affirmed by majority in Davis at para 86, ("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. ")
    R v Delacruz, 2016 ABQB 187 (CanLII), at para 87
  8. ↑ Nguyen, supra at para 10
  9. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 46, 47
  10. ↑ R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595 at para 139 ("The bare assertion by the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief. The assertion must be “supported to some degree by other evidence or circumstances”:... . The support may come from the accused or some other sources; on this point I agree with Cory J’s resolution of the confusion which existed in the earlier cases. But the support must exist. As Lord Morris of Borth-y-Gest put it, a “facile mouthing of some easy phrase of excuse will not suffice” (citation omitted).")
  11. ↑ Ewanchuk, ibid. at para 51
  12. ↑ R. v. M. (M.L.), 1994 CanLII 77 (CSC), [1994] 2 S.C.R. 3 (S.C.C.)

Reasonable Steps

The accused must have taken "reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question".[1]

What constitutes "reasonable steps depends on the particulars circumstances of the case".[2]

This inquiry by the accused into consent is to occur before the sexual act commences.[3] Escalation in the sexual activity requires further inquiry.[4]

The court must ascertain "the circumstances known to the accused" at the time and then ask whether "a reasonable man was aware of the same circumstances" would have taken further steps before proceeding.[5]

The assessment is from an "objective point of view" but one that is "informed by the circumstances subjectively known to the accused".[6]

This defence is available in circumstances where the victim was unconscious, asleep or otherwise incapable of consenting but appeared awake and to consent from the perspective of the accused.[7]

  1. ↑ J.A., supra at para 48
  2. ↑ R v Crangle, 2010 ONCA 451 (CanLII) at para 29 leave to SCC refused, [2010] SCCA 300
  3. ↑ R v Darrach, supra at para 90
  4. ↑ Ewanchuk, supra at para 99
  5. ↑ R v Malcolm, 2000 MBCA 77 (CanLII), per Helper JA, at para 24, leave to SCC refused
  6. ↑ R v Alboukhari, 2013 ONCA 581 (CanLII), per Epstein JA, at para 42
    R v R.G., 1994 CanLII 8752 (BC CA) at para 29
  7. ↑ R v Crespo, 2016 ONCA 454 (CanLII), per Miller JA, at para 11
    R v Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, per Major JA, at paras 17-25

Irreconcilable Versions of Events

Where there are diametrically opposite versions of events between the victim's evidence and the accused's evidence are not collectively reconcilable, then the case is determined by conventional credibility analysis and mistaken belief of consent is not to be put to the jury.[1]

  1. ↑ R v Davis, 1999 CanLII 638 (SCC), per Lamer CJ, at para 85
    R v Somers, 2009 ONCA 567 (CanLII)

Procedural Considerations

There must first be an "air of reality" before the defence can be considered.[1]

In almost all cases, the accused will have to testify to establish a mistaken belief.[2]

  1. ↑ R v Davis, 1999 CanLII 638 (SCC), per Lamer CJ, at para 81
    R v Barton, 2017 ABCA 216 (CanLII), per curiam, at paras 240 to 264
  2. ↑ R v Slater, 2005 SKCA 87 (CanLII), per Jackson JA
    R v Ross, 2012 NSCA 56 (CanLII), per Bryson JA
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