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R. v. Park, [1995] 2 S.C.R. 836

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

Darryl Gordon Park    Respondent

 

Indexed as:  R. v. Park

 

File No.:  23876.

 

1994:  December 7; 1995:  June 22.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for alberta

 

                   Criminal law ‑‑ Sexual assault ‑‑ Defence of honest but mistaken belief in consent ‑‑ Trial judge refusing to put defence to jury ‑‑ Accused's conviction overturned on appeal ‑‑ Whether there was evidence to lend defence an "air of reality" ‑‑ Nature and proper application of "air of reality" test ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 265(4) .

 

                   The accused was charged with sexual assault.  Two weeks before the incident, the complainant and the accused had dated for the first time.  The accused testified that later, at her apartment, they became quite intimate, fondling one another's private parts and talking of sex and birth control, and that she masturbated him to ejaculation.  She maintains that they only kissed and talked of birth control and about the fact that, as a born again Christian, she did not believe in premarital sex.  On the day of the incident, the accused called the complainant early in the morning and she agreed that he could come over.  He arrived shortly thereafter and she greeted him at the door with a kiss on the cheek, wearing only her bathrobe.  The complainant claims that, a few minutes later, he drew her to him and pushed her onto the bed.  She resisted actively but he was stronger.  Feeling his weight atop her, she had a flashback to a previous traumatic experience and went into "shock".  The next thing she remembered, he was pulling his penis out of her and ejaculating on her stomach.  By contrast, the accused testified that she actively participated in the sexual activity and, when things began to get "hot", he prematurely ejaculated on her stomach.  No intercourse took place.  A medical report from the examination of the complainant indicated the presence of redness on the inner labia which could be consistent with either consensual or non‑consensual intercourse.  At trial, the accused's defence was that the complainant consented to the sexual activity or, in the alternative, that he had an honest but mistaken belief that she was consenting.  The trial judge refused to put the mistaken belief defence to the jury, finding there to be no air of reality to it, and concluding that the issue was simply one of "consent or no consent".  The accused  was convicted.  On appeal, the majority of the Court of Appeal set aside the conviction and ordered a new trial, holding that the trial judge erred in not putting the mistaken belief defence to the jury.

 

                   Held:  The appeal should be allowed and the conviction restored.

 

                   Per Lamer C.J. and La Forest, Gonthier, Cory and McLachlin JJ.:  Subject to the following reservation, L'Heureux‑Dubé J.'s reasons were agreed with.  No comment should be made on the interaction of consent and mistake of fact in a sexual assault situation since it is not necessary to deal with these matters in deciding this appeal.

 

                   Per L'Heureux‑Dubé J.:  Before any defence can be left with a jury, it must have an "air of reality".  The "air of reality" test is a legal threshold, not a factual one. The trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.  He is not concerned with the weight of evidence or with assessments of credibility.

 

                   In sexual assault cases, where the accused asserts that the complainant actually consented, it is artificial to inquire further into whether he also expressed a belief that she was consenting.  The absence or presence of an actual statement indicating a belief in consent is of no consequence in all but the most unusual of cases.  Presuming that the accused is de facto asserting such a belief, the more fundamental question is whether that belief is an honest one, capable of supporting the defence of honest but mistaken belief in consent.

 

                   Essentially, for there to be an "air of reality" to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence.  Although there is not, strictly speaking, a requirement that the evidence be corroborated, that evidence must amount to something more than a bare assertion.  There must be some support for it in the circumstances.  The presence of "independent" evidence supporting the accused's testimony will only have the effect of improving the chances of the defence.  The judge's role is limited to ascertaining whether the accused has discharged the evidentiary burden imposed by s. 265(4)  of the Criminal Code .

 

                   What is relevant to a possible defence of honest but mistaken belief is the account of the events that took place at the time of the sexual assault, as well as any additional relevant and admissible information explaining why the accused might have honestly interpreted those events at that time to be consistent with consent.  In certain cases, evidence of prior sexual activity between the two parties may be relevant in this respect.  An honest belief that the complainant would consent is, by itself, not a defence to sexual assault where the accused is aware of, or wilfully blind or reckless as to, lack of consent at the time of the sexual activity.  Only where an accused entertains an honest belief that the complainant actually does consent does this mistake render the sexual assault non‑culpable.  When the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then 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.  When the complainant's and the accused's versions conflict materially or are diametrically opposed on this point, then the defence can be left with the jury 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.  If the versions 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 should not be put to the jury.

 

                   There is no air of reality to a particular defence, and therefore no need to put it to the jury, where: (1) the totality of the evidence for the accused is incapable of amounting to the defence being sought; or (2) the totality of the evidence for the accused is clearly logically inconsistent with the totality of evidence which is not materially in dispute.  These standards should be viewed realistically, and not evaluated according to purely speculative or hypothetical extremes.  What is truly important to the "air of reality" test in respect of a particular defence is that the evidence said to provide some basis for the defence must actually relate to, and support, that particular defence.  Evidence going to an ancillary issue or failing to address a clear and undisputed logical inconsistency in an accused's claim to the honest mistake defence will not, itself, be sufficient to lend that defence an air of reality.

 

                   The actus reus of sexual assault requires that the Crown demonstrate a touching of a sexual nature, combined with a lack of actual consent to that touching, while the mens rea is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching.  However, in reinforcing the view that sexual activity is consensual in the absence of communicated non‑consent, the current common law approach to the mens rea of sexual assault may perpetuate social stereotypes that have historically victimized women and undermined their equal right to bodily integrity and human dignity.  The primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in.  The criminal law must be responsive to women's realities, rather than a vehicle for the perpetuation of historic repression and disadvantage.  The common law governing the mens rea of sexual assault should be approached having regard to s. 15  of the Canadian Charter of Rights and Freedoms , and it should be accepted that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communicated.  As a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent.  Everything else is ancillary.  Although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to believe that the complainant was consenting.  If the accused is unable to point to evidence tending to show that the complainant's consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant's absence of consent.

 

                   The trial judge was correct in not putting the defence of mistake of fact to the jury.  There was nothing in the totality of this evidence, coming from either the complainant or the accused, to lend any air of reality to the possibility that the accused may have held a mistaken belief as to her consent.  Nor would it have been possible for a reasonable jury to splice together some of her evidence and some of his with respect to the encounter, and to settle upon a reasonably coherent set of facts that could support the defence of mistaken belief in consent.  The dissimilarities between the alleged assault and the sexual activities that took place in the encounter two weeks earlier can only lead to the conclusion that the evidence of that encounter was neither relevant to, nor capable of supporting, an honest belief on the part of the accused that the complainant was consenting at the time of the assault.  The factors listed by the Court of Appeal as lending an air of reality to that defence were all only capable, if anything, of supporting a belief on the part of the accused that the complainant would consent, not a belief that she did in fact consent.  None of the factors relate in any realistic way to the events that actually took place at the time of the alleged sexual assault.

 

                   Per Sopinka J.:  While many of L'Heureux-Dubé J.'s comments with respect to the defence of honest but mistaken belief in consent were agreed with, it is unnecessary and undesirable to attempt to define exhaustively the constituents of the defence in this case.  It is a simpler task to delimit the absence of an air of reality than to define in law its constituent components.  In this appeal, the appropriate question is whether there was some evidence that the accused honestly believed that the complainant consented to intercourse.  The complainant's evidence was of no assistance to the accused as he testified that no intercourse took place.  This is inconsistent with a belief in consent to intercourse.

 

                   Per Cory, Iacobucci and Major JJ.: The trial judge did not err in withholding from the jury the defence of honest but mistaken belief in consent because he was entitled to conclude that there was, in all the circumstances of the case, no air of reality to the defence.  In effect, the accused denied that any intercourse occurred but, alternately, argues that if it did occur, he thought there was consent.  In these circumstances, it makes no sense to apply the air of reality defence to such an inconsistent position.  As well, the trial judge committed no error in ruling that evidence of previous sexual activity was inadmissible.

 

Cases Cited

 

By L'Heureux‑Dubé J.

 

                   Referred to:  Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Reddick, [1991] 1 S.C.R. 1086; R. v. Guthrie (1985), 20 C.C.C. (3d) 73; R. v. White (1986), 24 C.C.C. (3d) 1; R. v. Livermore (1994), 18 O.R. (3d) 221; R. v. M. (M.L.), [1994] 2 S.C.R. 3; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Jobidon, [1991] 2 S.C.R. 714; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Daviault, [1994] 3 S.C.R. 63; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Lavallee, [1990] 1 S.C.R. 852.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, s. 15 .

 

Criminal Code, R.S.C., 1985, c. C‑46, s. 265(1) , (2) , (4) .

 

Authors Cited

 

Great Britain.  Advisory Group on the Law of Rape.  Report of the Advisory Group on the Law of Rape. London:  HMSO, 1975.

 

Vandervort, Lucinda.  "Mistake of Law and Sexual Assault:  Consent and Mens Rea" (1987‑88), 2 C.J.W.L. 233.

 

Wiener, Robin D.  "Shifting the Communication Burden:  A Meaningful Consent Standard in Rape" (1983), 6 Harv. Women's L.J. 143.

 

                   APPEAL from a judgment of the Alberta Court of Appeal (1993), 145 A.R. 207, 55 W.A.C. 207, allowing the accused's appeal from his conviction by Waite J. on a charge of sexual assault, and directing a new trial.  Appeal allowed and conviction restored.

 

                   Paul C. Bourque, for the appellant.

 

                   Alan S. Rudakoff, for the respondent.

 

                   The judgment of Lamer C.J. and La Forest, Gonthier, Cory and McLachlin JJ. was delivered by

 

1                 Lamer C.J. -- I have read the reasons for judgment written by my colleague Justice L'Heureux‑Dubé and, for the reasons given by her, I agree that the Crown's appeal should be allowed and the conviction restored.  I would like, however, to express one reservation.

 

2                 My reservation concerns the "Mistake of Fact and Consent" section of the analysis by L'Heureux‑Dubé J., which deals with the interaction of consent and mistake of fact in a sexual assault situation.  I prefer to make no comment on this subject since it is not necessary to deal with these matters in deciding this appeal.  As this Court did not have the benefit of any argument on the aspects discussed by my colleague in this section, I would prefer to reserve these matters for another time.

 

                   The following are the reasons delivered by

 

3                 L'Heureux-Dubé J. -- The respondent was charged with sexual assault as a result of events that took place at the complainant's home early in the morning of November 25, 1991.  At trial, his defence was that the complainant consented to the sexual activities engaged in or that, in the alternative, he held an honest but mistaken belief that she consented to those activities.  The trial judge concluded that the facts of the case did not lend the mistaken belief defence any "air of reality", and therefore declined to put it to the jury.  The respondent was convicted.  On appeal, his conviction was overturned and a new trial ordered.  The Crown appeals to this Court as of right on the question of both the nature and the proper application of the "air of reality" test to the mistake of fact defence in the context of a sexual assault.

 

I.  Relevant Statutory Provisions

 

4                 At the time of the offence, the following were the relevant provisions of the Criminal Code, R.S.C., 1985, c. C-46 :

 

                   265. (1) A person commits an assault when

 

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

 

                                                                    ...

 

                   (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

 

                                                                    ...

 

                   (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. [Emphasis added.]

 

II.  Facts and Judgments

 

5                 In early November 1991, the complainant and the respondent met in a parking lot when the respondent helped her remove her car from an icy spot.  He asked for her phone number.  She agreed.  Approximately one week later, on November 12, they went out on a date and subsequently returned to her place.  He says that they became quite intimate, removed substantially all of their clothing, fondled one another's private parts, talked of sex and birth control, and that she masturbated him to ejaculation.  She maintains that they only kissed, talked of birth control, and talked about the fact that, as a born again Christian, she did not believe in premarital sex.  Nothing else happened and he left at around 9:45 p.m. 

 

6                 Thirteen days later, on November 25, the respondent, having driven all night from Winnipeg, called the complainant up at six in the morning from his cellular phone and asked if he could stop by.  Although she had just gotten up for work, she assented since she thought he needed to talk.  He arrived ten minutes later, having stopped to buy a condom at a nearby store.  She greeted him at the door with a kiss on the cheek, clad only in her bathrobe.  He entered and beckoned her to the couch and tried to kiss her.  At this point, their stories diverge considerably.

 

7                 According to her, she pulled away and, seeing the condom in his hand, asked if that was "why [he] came over here".  Distraught, she went to her room to take her sleeping 2-year-old child off her bed and took her to another room to change the child's diapers.  The respondent followed her.  After she had finished, he beckoned the complainant into the bedroom.  She followed, thinking that he wanted to "crash", since he had driven all night before arriving at her door.  She began to look in her closet for clothes to wear to work when she turned around and saw that the respondent had taken his shirt off.  She claims that he drew her to him and kissed her and then pushed her onto the bed.  She resisted actively, both verbally and physically, but he was stronger.  She described in considerable detail the assault.  Feeling his weight atop her, she had a flashback to a previous traumatic experience and went into "shock".  The next thing she remembered, he was pulling his penis out of her and ejaculating on her stomach.  She fled to the bathroom, needing to vomit.  He dressed and kissed her goodbye on the cheek as he left.  The complainant did not go to work that day, but instead went directly to see her counsellor, who testified to the fact of her emotionally agitated state on that particular day.

 

8                 By contrast, the respondent claims that they sat on her couch and kissed, and that he then asked to use the washroom.  The complainant then took her sleeping child back to the child's bedroom, and the two of them entered the complainant's bedroom where they lay on the bed and began to kiss.  She actively participated in the sexual activity.  Her only resistance was that, when he pulled out the condom, she said "no, not yet".  He therefore put the condom aside on the pillow.  In his words, things then began to get "hot" and he prematurely ejaculated on her stomach.  No intercourse took place.  They talked for a short period of time.  She got up and went to the bathroom.  He dressed, kissed her goodbye and left.

 

9                 At trial, the respondent asserted that the complainant consented to the sexual activity or, in the alternative, that he had an honest but mistaken belief that she was consenting.  Both the complainant and the respondent testified.  A report from the medical examination of the complainant was admitted into evidence in an agreed-upon statement of facts.  That report indicated no physical injury, but noted the presence of redness on the inner labia which could be consistent with either consensual or non-consensual intercourse.  The trial judge refused to put the mistaken belief defence to the jury, finding there to be no air of reality to the defence, and concluding that the issue was simply one of "consent or no consent".  Because of his ruling on the mistaken belief defence, he also instructed the jury to disregard all evidence of any sexual activity between the complainant and the respondent prior to the alleged incident, since it was not relevant to any other issue in the trial.  The respondent was convicted.

 

10               McClung J.A., for the majority of the Alberta Court of Appeal (1993), 145 A.R. 207, 55 W.A.C. 207, held the trial judge's failure to put the mistaken belief defence to the jury to be in error.  He enumerated certain independent facts that, in his view, lent an air of reality to the defence of honest but mistaken belief in consent: the complainant's telephone overture to the respondent, the discussions of her use of birth control, and the fact that she met him with a kiss at 6:10 a.m. on November 25 wearing only her bathrobe. He also held the trial judge's instruction that the jury disregard the prior sexual activity to be in error, since it was relevant to the question of mistaken belief.  McFadyen J.A. dissented on the basis that none of the factors pointed to by the majority lent any air of reality to the defence.

 

III.  Analysis

 

11               The common law has long recognized that a trial judge need not put to the jury defences for which there is no real factual basis or evidentiary foundation.  Courts must filter out irrelevant or specious defences, since their primary effect would not be to advance the quest for truth in the trial, but rather to confuse finders of fact and divert their attention from factual determinations that are pertinent to the issue of innocence or guilt.  Since this Court's judgment in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, the requirement that such a foundation exist for a defence before it is put to the jury has generally come to be known as the "air of reality" test. 

 

12               In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. noted that this test applies uniformly to all defences, and that its application to the defence of mistaken belief in consent was only a subset of this broad principle.  In Osolin, moreover, this Court concluded that the requirement in s. 265(4)  of the Criminal Code  that there be "sufficient evidence" in order for a judge to put the defence of mistake to the jury was essentially a codification of the common law "air of reality" test as it relates to the mistake of fact defence.  Although, or perhaps because, several separate judgments were written in Osolin on the air of reality test, certain questions regarding that test appear to persist.  In an effort to dispel any remaining confusion, it is appropriate to examine briefly the purpose of the "air of reality" threshold before turning to several aspects of its application: the significance of the absence or presence of an actual allegation by the accused of mistaken belief; the extent to which the accused's version must be corroborated; and the effect on the trial if the accused and the complainant tell diametrically opposed stories.  This discussion will be followed by observations that may assist trial judges in identifying circumstances in which there clearly is no air of reality to the honest mistake defence.

 

A.  The Nature and Purpose of the "Air of Reality" Threshold

 

13               In Pappajohn, supra, at pp. 126-27, McIntyre J. explained the air of reality test in the following manner:

 

Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial judge must put a defence.

 

In R. v. Bulmer, [1987] 1 S.C.R. 782, he further elaborated upon this standard (at p. 790):

 

There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case.  If that mere assertion were sufficient to require a trial judge to put the "mistake of fact" defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require the defence to be put.  It must be remembered that at this stage of the proceedings the trial judge is not in any way concerned with the question of guilt or innocence.  He is not concerned with the weight of evidence or with the credibility of evidence.  The question he must answer is this.  In all the circumstances of the case, is there any reality in the defence?  To answer this question he must consider all the evidence, all the circumstances.  [Emphasis added.]

 

The requirement that the trial judge not enter into assessments of credibility or weighing of evidence is an important factor in the application of this test.  The test is the means by which a judge demarcates the limits of the jury's fact-finding responsibilities.  A jury must not be invited to speculate on issues that are not realistically before it:

 

The term "air of reality" simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.  If the evidence meets that test then the defence must be put to the jury.  This is no more than an example of the basic division of tasks between judge and jury. [Emphasis added.]

 

(Osolin, supra, at p. 682, per Cory J.)

 

This underlying rationale must be kept first and foremost in the minds of trial judges as they seek to apply the "air of reality" test.  It is a legal threshold, not a factual one.  It is an error of law for a judge not to put a defence to the jury where an air of reality to that defence exists and it is an error of law to put a defence to a jury where no such air of reality exists.  This line can sometimes be a fine one, however, for although we urge trial judges not to descend into the arena of facts, we nonetheless require that they consider nothing less than the "totality of the circumstances" in deciding whether an air of reality exists to found a particular defence.  These seemingly conflicting requirements can invite analysis that is at best imprecise and at worst reflective of little more than a judicial "gut feeling".  Although this matter will be revisited shortly, it is first important to clear up several misconceptions about the application of the "air of reality" test.

 

B.  Application of the "Air of Reality" Threshold

 

                   1. Assertion of an Honest Belief in Consent

 

14               Some have interpreted this Court's past jurisprudence as suggesting that an accused must actually allege a "belief" in consent, as opposed to asserting the presence of consent itself, in order for there to be a basis for the honest but mistaken belief defence.  Both parties to the present appeal, in fact, devote significant argument to the question of whether the accused actually asserted such a belief or whether his failure to assert it precludes him from claiming that defence.  Frankly, they are chasing a red herring.

 

15               The defence of mistake of fact was described in Pappajohn, supra, at p. 148, by Dickson J. (dissenting in the result):

 

Mistake is a defence... where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged.  Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence.  It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of the offence.  Mistake is a defence though, in the sense that it is raised as an issue by an accused.  The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts. [Emphasis added.]

 

 

Thus, for instance, if a hunter shoots what he believes to be a deer and subsequently discovers that he has shot a man, then he will likely rely on the defence of mistake of fact to claim that he has acted innocently as a result of a mistaken perception.  In the vast majority of cases, one might seriously doubt that there is an air of reality to the defence of mistake of fact if the accused fails even to assert any belief that the man was a deer.  In such circumstances, the mistake of fact defence, for all intents and purposes, generally requires the accused to assert a belief or misperception relating to an essential element of the actus reus, the existence of which is generally not otherwise in dispute, in order to imbue that defence with an air of reality. 

 

16               Transferring this practical consequence to the context of sexual assault is more problematic, however.  In the context of sexual assault, proof of the actus reus includes proof of the fact that the complainant was not, in fact, consenting.  By the very nature of sexual assault, however, the issue of actual consent is almost always materially in dispute.  For the accused to assert a belief which he acknowledges to be mistaken (i.e., a misperception), he would essentially have to assert a belief that implicitly concedes the actus reus of the offence -- i.e., the non-consent.  It is inappropriate to suggest that an accused should have to assist the Crown in proving the actus reus of the offence, by admitting that "perhaps he was mistaken about her consent", in order to rely on the mistaken belief defence.  Given that consent is, itself, a mental state experienced only by the complainant, an accused's assertion that the complainant consented must mean that he in fact believed she was consenting (see Lamer J., concurring, in Bulmer, supra, at p. 799).  The distinction between asserting a belief in consent and asserting consent, itself, is therefore both artificial and potentially misleading.  Assault differs importantly from most other Code offences in its interaction with the mistake of fact defence.  Under most other offences, mistake of fact will primarily arise in contexts in which the actus reus of the offence is beyond dispute.  Assaults raise a unique problem in that the mental state of another person (i.e.,  consent or lack thereof) is an essential element that is relevant to both the actus reus and the mens rea of the offence -- an element which almost invariably is materially in dispute.

 

17               McIntyre J. made it clear in Bulmer, supra, at pp. 790-91, that the absence or presence of an actual statement by the accused alleging mistaken belief is of limited significance to the determination of whether or not there exists any air of reality to that defence:

 

The question he must answer is this.  In all the circumstances of this case, is there any reality in the defence?  To answer this question, he must consider all the evidence, all the circumstances.  The statement of the accused alleging a mistaken belief will be a factor but will not by itself be decisive, and even in its total absence, other circumstances might dictate the putting of the defence. [Emphasis added.]

 

I must respectfully go even further.  Where the accused asserts that the complainant actually consented, then it is artificial to inquire further into whether he also expressed a belief that she was consenting.  The absence or presence of an actual statement indicating a belief in consent is of no consequence in all but the most unusual of cases.  Presuming that the accused is de facto asserting such a belief, the more fundamental question is whether that belief is an honest belief, capable of supporting the defence of honest but mistaken belief in consent (see Osolin, supra, at p. 649, per McLachlin J.).  It is to this question that we must now turn.

 

                   2. The "Corroboration" Requirement

 

18               Independent corroboration implies objectivity and reliability.  Where there is "independent" evidence, particularly real evidence, corroborating an accused's testimony with respect to a particular defence, then a court can generally conclude that, as a matter of law, there is an "air of reality" to that defence.  As a purely practical matter, courts have a more difficult time in deciding what to do in circumstances where there is an absence of "independent" corroborative evidence.  Sexual assault, by virtue of the fact that it is often not witnessed by anyone other than the complainant and the accused and by virtue of the fact that it does not require proof of visible physical injury to the complainant, raises special problems in this respect.

 

19               In Pappajohn, supra, at p. 133, McIntyre J. made the following observation about the circumstances in which an "air of reality" would exist for the defence of mistaken belief of consent:

 

To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant.  This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality. [Emphasis added.]

 

He subsequently explained what he had meant by this statement, in Bulmer, supra, at p. 790:

 

These words appear, on occasion, to have been misunderstood, but I do not withdraw them.  There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case.... The question [the trial judge] must answer is this.  In all the circumstances of this case, is there any reality in the defence?  To answer this question, he must consider all the evidence, all the circumstances.

 

More recently in Osolin, supra, at pp. 686-87, Cory J. reiterated this point:

 

There is no requirement that there be evidence independent of the accused in order to have the defence put to the jury.  However, the mere assertion by the accused that "I believed she was consenting" will not be sufficient.  What is required is that the defence of mistaken belief be supported by evidence beyond the mere assertion of a mistaken belief....

 

... The requisite evidence may come from the detailed testimony of the accused alone, on this issue or from the testimony of the accused coupled with evidence from other sources.  For example, the complainant's testimony may supply the requisite evidence. [Emphasis added.]

 

McLachlin J.'s remarks in Osolin on this issue (at pp. 649-50) are equally apposite:

 

. . . the accused's mere assertion of his belief is not evidence of its honesty.  The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person would have believed.  But nevertheless it does require some support arising from the circumstances.  A belief which is totally unsupported is not an honestly held belief.  A person who honestly believes something is a person who has looked at the circumstances and has drawn an honest inference from them.  Therefore, for a belief to be honest, there must be some support for it in the circumstances.... A person who commits a sexual assault without some support in the circumstances for inferring the consent of the complainant has, at very least, been wilfully blind as to consent. [Emphasis added.]

 

 

Sopinka J. preferred, at pp. 654-55, to characterize the "air of reality" test more simply, as an ordinary evidentiary burden on an accused to adduce sufficient evidence to justify a defence being put to a jury.  In many ways, he is correct.  I think, however, that the unique social and legal context of sexual assault, including the uncommon frequency with which the mistake of fact defence is raised, make it necessary for this Court to elaborate somewhat on that standard.

 

20               Essentially, for there to be an "air of reality" to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence.  Although there is not, strictly speaking, a requirement that the evidence be corroborated, that evidence must amount to something more than a bare assertion.  There must be some support for it in the circumstances.  The search for support in the whole body of evidence or circumstances can complement any insufficiency in legal terms of the accused's testimony.  The presence of "independent" evidence supporting the accused's testimony will only have the effect of improving the chances of the defence.  The judge's role is limited to ascertaining whether the accused has discharged the evidentiary burden imposed by s. 265(4) of the Code.

 

21               As a corollary, in the absence of some other evidence supporting such a defence, it is difficult to imagine situations in which there will be sufficient evidence to put the defence of mistaken belief to the jury where an accused does not testify (see R. v. Reddick, [1991] 1 S.C.R. 1086).  Finally, for practical and policy reasons which shall be discussed below, courts must be wary of being too ready to put the mistaken belief defence to the jury.  We must recall that it is the rare exception rather than the general rule that a sexual assault will have been committed by accident.  As McLachlin J. observed in Osolin, supra, at p. 648, the defence of mistake of fact has only really received special attention in the context of sexual assault trials because of the frequency with which that defence is asserted without evidentiary foundation.

 

                   3. Diametrically Opposed Stories

 

22               It is true that in cases where the defence of honest but mistaken belief is not put to the jury, there is often a considerable divergence between the evidence of the accused and that of the complainant (Pappajohn, supra; R. v. Guthrie (1985), 20 C.C.C. (3d) 73 (Ont. C.A.); R. v. White (1986), 24 C.C.C. (3d) 1 (B.C.C.A.); R. v. Osolin, supra; and R. v. Livermore (1994), 18 O.R. (3d) 221 (C.A.)).  The significance of diametrically opposing stories is often misunderstood in two respects, however.

 

23               First, it is important to recall that the two individuals' stories are only relevant to guilt or innocence of sexual assault in so far as they relate in some way to the circumstances affecting the parties at the time of the alleged assault.  Beyond evidence such as the location and time of the alleged assault and the conduct of the two parties at that time, this includes relevant and admissible background facts which explain how the accused could have honestly interpreted the complainant's conduct at the time of the alleged assault to mean that she was consenting.  For instance, this Court has recognized that passivity may express lack of consent (R. v. M. (M.L.), [1994] 2 S.C.R. 3).  Taken together with passive behaviour by the complainant, earlier acts, gestures or incidents may in certain cases colour the accused's perception of the complainant's behaviour, and serve as relevant evidence in assessing the existence or air of reality of an honest but mistaken belief in actual consent.  Those acts and gestures may form part of a broader context or continuum which is necessary to understand the accused's honest perception of the complainant's behaviour at the time of the alleged assault.

 

24               At the same time, it must always be remembered that consent, even if given at one point, may be withdrawn at any time.  Consequently, it can be dangerous to assume that evidence capable of founding an honest belief on the part of the accused that the complainant would consent to sexual activity is informative of the real question at issue, which is whether the accused believed that the complainant in fact consented to that activity.  An honest belief that the complainant would consent is not a defence to sexual assault where the accused is aware of, or wilfully blind or reckless as to, lack of consent at the time of the sexual activity.  Only where an accused entertains an honest belief that the complainant actually does consent does this mistake render the sexual assault non-culpable.  Absent some realistic showing of how earlier events could have influenced the accused's honest perceptions of the complainant's behaviour at the time of the actual assault, such evidence will not be capable of supporting, by itself, the defence of honest but mistaken belief in consent.

 

25               Secondly, the fact that stories are diametrically opposed, as well as the degree to which they are opposed, is but one factor in the air of reality determination.  Instances in which stories are diametrically opposed and where there is no air of reality are, in fact, specific applications of the air of reality threshold.  They are not intrinsic to the test, itself.  The question is not whether two stories are so diametrically opposed that there can be no air of reality to the defence of mistaken belief in consent.  This approach ignores the presence of other factors, such as corroborative evidence, which may nonetheless justify putting the defence of honest mistake to the jury (see Bulmer, supra).  Rather, we must bear in mind that neither the version of the facts given by the complainant nor that given by the accused is necessarily a full and complete account of what actually took place and, as such, a jury may decide not to believe certain parts of each person's testimony.  Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, 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.  Would the acceptance of one version necessarily involve the rejection of the other?   Put another way, is it 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?  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.

 

26               To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then 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.  On the other hand, courts 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. 

 

C.  Absence of an Air of Reality

                  

27               It is apparent from the problems that judges, practitioners and academics have all encountered in finding a satisfactory means by which to apply the "air of reality" test that it is, indeed, a somewhat elusive standard to put into practice.  There is more than one way, though, to approach every problem.  Although it may be difficult to put into positive terms that which is necessary to satisfy the "air of reality" test, framing the test negatively can be a more fruitful endeavour.  In other words, though it may be difficult to define in precise terms and as a matter of law the constituent components of "air of reality", it can be a simpler task to delimit with some degree of certainty when an "air of reality" is absent.  I will refer to this approach as the "absence of air of reality", and preface the following observations with the very sharp reminder that the two tests are not the same: failure to find a readily ascertainable "absence of air of reality" using a particular legal test by no means precludes a finding that the "air of reality" threshold has nonetheless not been satisfied.  Rather, the former constitutes a subset of the latter.  The following remarks elaborate on this approach.

 

28               The air of reality standard cannot be evaluated in light of the "totality of the evidence" without first breaking down that formless and undigested mass of evidence, distilling it, and finally analyzing it.  It could, for instance, be divided into four "rough and ready" categories: (1) testimonial evidence which is materially in dispute (i.e., addressing facts about which the case for the complainant and the accused disagree in important respects); (2) real evidence, the existence, significance or appreciation of which is materially in dispute; (3) testimonial evidence which is not materially in dispute (i.e.,  addressing facts about which the complainant and accused do not disagree in important respects), and (4) real evidence, the existence, significance and appreciation of which is not materially in dispute.

 

29               For the purposes of deciding whether a defence should or should not go to the jury, real and testimonial evidence not materially in dispute (categories 3 and 4) are the "objective comparators" against which those aspects of the case for the accused which are materially in dispute (categories 1 and 2) may be measured.  Where evidence supporting the accused which is materially in dispute is, realistically viewed, clearly logically inconsistent with evidence which is not materially in dispute, then it can be concluded as a matter of both law and logic that there can be no air of reality to the defence to which those logical inconsistencies relate.  Whereas evaluations of the accused's case against evidence that is materially in dispute generally requires assessments as to credibility or as to the appropriate weight to be given to that evidence, evaluations against evidence that is not materially in dispute does not call for such a process and is therefore more properly characterized as a question of law than as a question of fact.

 

30               Building upon this approach, it is possible to say that there is no air of reality to a particular defence, and therefore no need to put it to the jury, under the following circumstances:

 

                   (1) the totality of the evidence for the accused is incapable of amounting to the defence being sought; or

 

                   (2)the totality of the evidence for the accused is clearly, logically inconsistent with the totality of evidence which is not materially in dispute.

 

It goes without saying, of course, that these standards should be viewed realistically, and not evaluated according to purely speculative or hypothetical extremes.  We must recall that a defence should not be put to the jury unless a reasonable jury, properly instructed and acting judiciously, could acquit on that basis.

 

31               A court may conclude as a matter of law that there is no air of reality to a particular defence if the accused's case simply does not support it.  In Osolin, supra, at p. 651, McLachlin J. concluded that the undisputed facts of the accused's case were, at the very least, consistent with wilful blindness and therefore did not admit of the defence of honest belief in consent (see also Sansregret v. The Queen, [1985] 1 S.C.R. 570).  In her view, no person, reasonable or otherwise, could have honestly inferred consent from the circumstances, notwithstanding the fact that the complainant may have passively acquiesced at certain points.  In such instances, the absence of an air of reality to the defence of honest mistake precludes it from being put to the jury.

 

32               The second branch of this approach is both borne out and exemplified by the facts of Reddick, supra.  A 29-year-old man was charged with sexually assaulting a 15-year-old girl who was a virgin at the time of the assault.  The complainant and her girlfriends were watching television one Saturday afternoon.  The accused, whom the complainant knew only slightly, arrived and began to tickle them all, telling them to get up.  All but the complainant eventually left.  The accused tried to kiss the complainant on a few occasions, and she eventually slapped him in the face.  He then suggested that they go to McDonald's for a drink.  She assented, thinking that her friends would be outside and that they would stop her.  They were not outside.  The two drove to McDonald's and bought a drink.  When back in the car, the accused tried to kiss her again and tried to put his hand down her pants.  The complainant suggested they go for a drive, thinking that he could not do anything while he was driving.  The accused drove to a dead-end road, parked and tried to fondle her.  She told him to stop.  At that point a security car drove by, and the accused stopped.  He then drove her to a remote corner in the bottom level of an underground parking lot and raped her.  When the complainant tried to resist by holding her track pants up, the accused ripped a hole through them and had intercourse with her.  He took her home and told her not to tell her mother. 

 

33               When she arrived home, she informed her mother.  A medical examination revealed a half-inch tear on her vagina which was still bleeding.  The accused corroborated the complainant's evidence regarding his advances, regarding the trip to McDonald's, to the dead end and to the parking lot.  However, he testified that the sexual activity met with no resistance.  He explained that he drove her to the parking lot because he thought that there was a good likelihood that she would have sex with him.  He explained the ripped track pants on the basis that it was more convenient to have sex through her track pants.  In a trial by judge alone, the judge found absence of consent, but acquitted because he had a reasonable doubt as to whether or not the accused knew the victim was consenting.  This Court upheld the Court of Appeal's substitution of a verdict of guilty.

 

34               The fact of the torn track pants, the medical evidence inconsistent with consensual sexual intercourse, the complainant's age, and the sequence of events leading up to the alleged assault were all not materially in dispute.  Most importantly, however, the significance of the torn track pants could not be said to be materially in dispute, when viewed realistically in light of the medical evidence and the girl's age.  It could only be consistent with the use of force, overriding or wilfully blind to the will of the victim.  The totality of the accused's case was therefore clearly logically inconsistent with the defence of honest but mistaken belief and that defence should not have been available to the finder of fact (in this case, the judge sitting alone).

 

35               This approach also provides further support for the proposition, already accepted by this Court, that an air of reality cannot spring from what amounts to little more than a bare, unsupported assertion by the accused.  The facts in R. v. Robertson, [1987] 1 S.C.R. 918, are illustrative of this fact.  The complainant testified that the accused, a stranger, entered the apartment she shared with her room-mate under the pretence that he was a friend of the room-mate.  Once in the apartment, he put his hand over the complainant's mouth, pulled her hair, forced her to the floor, threatened her, hit her, and sexually assaulted her.  She did not resist the attack as she was afraid that he would hurt her more.  At trial, defence counsel argued consent and, alternatively, honest belief as to consent.  The accused did not testify.  He made only the bare, unsupported assertion through his counsel that he honestly believed that the complainant was consenting.  He did not contradict through his own testimony the version told by the complainant but rather sought to point out inconsistencies in her testimony through cross-examination.  This cross-examination did not, however, succeed in bringing the complainant's evidence materially into dispute.  Nor was there other evidence which brought that evidence materially into dispute.  As such, the accused's case regarding mistaken belief amounted to little more than a bare, unsupported assertion and it was clearly, logically inconsistent with the totality of the evidence that was not materially in dispute (including, in this case, the complainant's evidence).  It is difficult to see how the outcome would be any different if the accused had actually testified yet still only made a bare, unsupported assertion as to belief in consent without materially disputing those portions of the complainant's story relevant to the actual sexual assault.

 

36               This approach also offers helpful insight into circumstances where the totality of the accused's claim to a mistaken belief defence, realistically viewed, is clearly internally inconsistent.  It states the obvious to say that an accused cannot be said to dispute materially his own testimony.  Moreover, since the complainant's story is to the effect that she did not consent, the complainant also cannot be said to dispute materially statements made by the accused which indicate that the accused knew that she was not consenting (or was wilfully blind or reckless to that fact).  If, then, an accused on one hand cross-examines the complainant and elicits some evidence which might support the conclusion that he believed she consented but, on the other hand, essentially tells a story that amounts to nothing less than wilful blindness as to her consent, then there would be a clear inconsistency within his claim to a mistaken belief in consent (principally advanced via cross-examination of the complainant).  Thus, although the cross-examination, taken alone, could arguably constitute some evidence lending an "air of reality" to the defence of honest belief in consent, that defence should not be put to the jury because it suffers from a clear, internal logical inconsistency with facts that are not materially in dispute.

 

37               Much difficulty in defining the nature and type of "corroboration" required to lend an "air of reality" to the defence of mistake in consent may flow from past failures to acknowledge the relationship outlined above.  Although clear logical inconsistency is, in a way, the analytical antithesis to corroboration, it is important to recognize that what is truly important to the "air of reality" test in respect of a particular defence is that the evidence said to provide some basis for that defence must actually relate to, and support, that particular defence.  Evidence going to an ancillary issue or failing to address a clear and undisputed logical inconsistency in an accused's claim to the honest mistake defence, then, will not, itself, be sufficient to lend that defence an air of reality.  Although this conclusion seems obvious, it is apparently not always being followed, judging by the type of evidence deemed at times to be supportive of the defence.  With all due respect to McClung J.A., the present case is no exception.

 

D. Mistake of Fact and Consent

 

38               This Court recently concluded that a finding of lack of consent does not, as a matter of law, require some minimal word or gesture of objection:  M. (M.L.), supra.  Passivity is, in essence, capable of communicating lack of consent.  Although it is not strictly necessary to address this issue in order to resolve the present appeal, it seems to me that many of the difficulties relating to both the nature and the application of the air of reality test to honest belief defences may flow from the manner in which the common law approaches the mens rea of the offence of sexual assault.  In Osolin, supra, at p. 669, Cory J. observed that the crime of sexual assault is different from all other manners of assault in that it is gender based in the vast majority of cases.  He acknowledged that ss. 15  and 28  of the Canadian Charter of Rights and Freedoms , guaranteeing equality to men and women, play a special role in the context of sexual assault.  In my view, there may be reason to believe that the existing role of consent in the mens rea of the offence of sexual assault raises some concerns with respect to those two provisions of the Charter .  Briefly put, the current common law approach to consent may perpetuate social stereotypes that have historically victimized women and undermined their equal right to bodily integrity and human dignity.

 

39               The actus reus of sexual assault requires that the Crown demonstrate a touching of a sexual nature, combined with a lack of actual consent to that touching.  The mens rea for sexual assault is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching.  Our law typically takes this to mean that the accused must be shown to be aware of, or reckless or wilfully blind to, the fact that non-consent was communicated.  I shall elaborate immediately below on why, in my view, we must accept that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communicated.  In other words, the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes".

 

40               Few would dispute that there is a clear communication gap between how most women experience consent, and how many men perceive consent.  Some of this gap is attributable to genuine, often gender-based, miscommunication between the parties.  Another portion of this gap, however, can be attributed to the myths and stereotypes that many men hold about consent.  As R. D. Wiener has observed in "Shifting the Communication Burden: A Meaningful Consent Standard in Rape" (1983), 6 Harv. Women's L.J. 143, at p. 147:

 

[A] gender gap in sexual communications exists.  Men and women frequently misinterpret the intent of various dating behaviors and erotic play engaged in by their opposite-sexed partners.

 

 

                                                                    ...

 

 

                   Because both men and women are socialized to accept coercive sexuality as the norm in sexual behavior, men often see extreme forms of this aggressive behavior as seduction, rather than rape.  A great many incidents women consider rape are, in effect, considered "normal" by both male perpetrators and the male-dominated legal system.

 

 

The current approach to consent may perpetuate this unfortunate phenomenon.

 

41               Consent and assault are reciprocal concepts.  The limits of one ultimately define the other.  The role that consent plays in the law of sexual assault depends largely upon the purpose that we ascribe to that offence in contemporary society.  Rape laws originally developed to protect the proprietary interests that men -- fathers and husbands -- had in women (Wiener, supra, at p. 160, note 104).  A last vestige of this opprobrious notion -- the fact that the crime of rape did not apply to activity between a husband and wife -- was not eliminated in Canada until 1983.  Long ago, however, the common law evolved to define rape in terms of sexual intercourse without consent and induced by force, fear or fraud (Great Britain, Report of the Advisory Group on the Law of Rape (1975), at p. 3).  At that time, it could be said that the primary purpose underlying the offence of rape was concern for the protection of women from physical injury.  The significance of the use of force has since diminished, however.  The crime of rape has been replaced with the broader offence of sexual assault.  Actual intercourse is not a prerequisite for a sexual assault.  Moreover, a woman need no longer suffer actual physical injury before she can say that she was sexually assaulted.  Sexual assault is now, essentially, a sexual touching without consent.  The purpose of the criminal law in this domain has shifted once again.  The primary concern is no longer solely with the physical safety of women, but rather with something broader. 

 

42               In my view, the primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in.  If this is the case, then our approach to consent must evolve accordingly, for it may be out of phase with that conceptualization of the law.  In this respect, L. Vandervort argues in "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987-88), 2 C.J.W.L. 233, at p. 267, that consent must be regarded from the standpoint of communication, rather than from the standpoint of a private mental state:

 

                   The social act of consent consists of communication to another person, by means of verbal and non-verbal behaviour, of permission to perform one or more acts which that person would otherwise have a legal or non-legal obligation not to perform.... To consent is to waive a right and relieve another person of a correlative duty....

 

... Acts performed in reliance on such a waiver do not breach any operative legal duty and do not constitute commission of an offence.  It is thus clear that any analysis of consent must consider what, if anything, was actually communicated, as well as whether the communication was voluntary. [Emphasis added.]

 

Vandervort concludes as follows, at p. 277:

 

                   The right of the individual to be free of non-consensual sexual contact will be protected only if consent is interpreted as an absolute issue, such that a failure to find that it was present is taken to demonstrate that it was absent....  The law provides that sexual touching is assaultive unless the person touched agrees to be touched.  It does not provide that the transaction is non-assaultive unless the person touched objects. [Emphasis in original.]

 

43               Consideration of communication of consent has always implicitly informed our approach to how knowledge of absence of consent relates to the mens rea of the offence of sexual assault.  In fact, since consent is, itself, a private mental state, we go about inferring it in much the same way as we would infer mens rea.  Namely, we look to verbal and non-verbal cues and then draw inferences about a particular mental state by evaluating the individual's behaviour in light of the totality of the circumstances.  A finder of fact employs these techniques to determine whether a complainant has, in fact, not consented to a sexual touching.  In so far as the actus reus of the offence of sexual assault is concerned, the inquiry stops there.  The mens rea of sexual assault, however, requires proof of the accused's awareness of, or recklessness or wilful blindness to, this absence of consent.  The inquiry into absence of consent for the purposes of establishing the mens rea of the offence must therefore go one step further, and delve into the accused's perception of the absence of consent.  Since mistake of fact goes to the mens rea of the offence, an honest mistake of fact by the accused in this respect may therefore indicate that he possessed a non-culpable state of mind.

 

44               As I mentioned earlier, however, circumstances are not relevant to the defence of honest but mistaken belief where they are only capable of supporting a belief on the part of the accused that the complainant would consent, rather than being capable of supporting his belief that she does, in fact, consent.  An accused cannot say that he believed the complainant to be consenting without pointing out the basis for that belief.  As a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent.  Everything else is ancillary. 

 

45               Non-consensual sexual touching is criminal unless, at the least, the accused honestly believes that consent has been communicated with respect to that touching.  Thus, as a practical matter, the mens rea of the offence does not relate so much to the complainant's frame of mind as it does to the complainant's communication of that frame of mind and to the accused's perception of that communication.  Furthermore, although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to hold this perception.  If the accused is unable to point to evidence tending to show that the complainant's consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant's absence of consent.  Of course, passivity can, itself, under certain infrequent circumstances, be communicative in character: M. (M.L.), supra.  By way of another example, evidence of past sexual behaviour between the parties might be relevant to the defence of mistake of fact in instances where that behaviour may have influenced the accused's honest perception of the complainant's communication relating to the particular sexual activity in question.  

 

46               Under such an analytic approach, although the communication gap between the sexes may still avail confusion and miscommunication, the consequences will accrue more equally to both.  Women, as a practical matter, still run the risk of being sexually assaulted unless they communicate non-consent in a manner that is sufficiently clear for others to understand.  Men, by contrast, must assume the responsibility for that part of the communication gap that is driven by androcentric myths and stereotypes, rather than by genuine misunderstanding due to gender-based miscommunication.

 

47               The assumption that if a woman is not consenting then she will say so is only helpful if we further assume that men perceive non-consent in the same way that women communicate it.  The elusive and multi-facetted character of sex-speak, however, demonstrates this latter assumption to be patently incorrect: 

 

A woman may believe she has communicated her unwillingness to have sex -- and other women would agree, thus making it a "reasonable" female expression.  Her male partner might still believe she is willing -- and other men would agree with his interpretation, thus making it a "reasonable" male interpretation.  The woman, who believes that she has conveyed her lack of consent, may interpret the man's persistence as an indication that he does not care if she objects and plans to have sex despite her lack of consent.  She may then feel frightened by the man's persistence, and may submit against her will.  [Emphasis in original.]

                   (Wiener, supra, at pp. 148-49.)

 

Acknowledging the reality of this communication gap between reasonable women and reasonable men requires us to discard the assumption that voluntariness -- defined only in terms of force, fear or fraud -- is a fair proxy for consent in the absence of communicated non-consent.  It is not.  As long as the effect of our approach to the mens rea of sexual assault reinforces the view that sexual activity is consensual in the absence of communicated non-consent, the damaging communication gap between the sexes, and the terrible costs that flow from it, will continue unacknowledged and will be perpetuated rather than narrowed.  In order to give full and meaningful effect to women's right to control their own bodies, we must recognize that awareness of, or recklessness or wilful blindness to, an absence of communicated consent is sufficient to found the mens rea of the offence of sexual assault.

 

48               In my view, finders of fact will benefit from focusing their attentions on communication, and honest perception of that communication, when determining whether the mens rea of the offence has been made out.  Such an approach will enable them to separate more effectively the wheat from the chaff --- the myth and the stereotype from the reality -- in determining whether the accused was aware of the complainant's absence of consent, or whether he could have entertained an honest but mistaken belief as to her consent.  It will help them to identify, and filter out, stereotypical beliefs on the part of the accused that lead him to override non-consent, or that lead him to be reckless towards whether a woman is consenting or not.  I believe that it may therefore lead to fairer, more accurate factual determinations.  I believe that it will also take women's and men's distinct realities more equitably into account.

 

49               There is nothing preventing the common law governing consent from evolving to reflect contemporary social mores and realities.  In fact, common law approaches to consent have always been strongly informed by public policy considerations.  As Gonthier J. observed for the majority of this Court in R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 740:

 

[Historically,] [i]t was a concern that the offence of assault -- more particularly the element of consent -- be informed by considerations of public policy.  Such considerations were thought sufficiently important to justify nullifying the legal validity of consent as a defence to a charge of assault.

 

He went on to enumerate several important public policy considerations, at pp. 762-65, to support his conclusion that consent between adults at common law is vitiated by an intention to cause serious hurt in the course of a fist fight or brawl.

 

50               In Leary v. The Queen, [1978] 1 S.C.R. 29, moreover, a majority of this Court recognized that public policy considerations played a role in justifying a departure from the ordinary principles of mens rea in instances of drunkenness by way of the specific/general intent distinction.  See also R. v. Bernard, [1988] 2 S.C.R. 833, at p. 865, per McIntyre J. The classification of sexual assault as a general intent offence to which drunkenness could not be a defence was also undeniably partly influenced by those same policy considerations.  This position was recently re-affirmed, subject to the narrowest possible exception of drunkenness demonstrably akin to automatism, by a majority of this Court in R. v. Daviault, [1994] 3 S.C.R. 63. 

 

51               The majority of this Court recently concluded in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, that the common law must develop in a way that is consistent with Charter  values.  It follows that the common law governing the mens rea of sexual assault must be approached having regard to, inter alia, s. 15  of the Charter .  As was the case in R. v. Lavallee, [1990] 1 S.C.R. 852, this Court must strive to ensure that criminal law is responsive to women's realities, rather than a vehicle for the perpetuation of historic repression and disadvantage.  A doctor who operates in the absence of the patient's informed and communicated consent risks being charged with assault.  Awareness of, or recklessness or wilful blindness to, the absence of that communication is culpable in such situations.  I see no reason why an accused charged with sexual assault should not be held to an identical standard. 

 

IV. Application to the Facts

 

52               In the present appeal, there was no air of reality to the accused's defence of mistaken belief in consent.  The factors listed by McClung J.A. as lending an air of reality to that defence -- the complainant's telephone overture to the respondent, the discussions of her use of birth control, the sexual activity engaged in thirteen days earlier, and the fact that she met him with a kiss at 6:10 a.m. on November 25 wearing only her bathrobe -- are all only capable, if anything, of supporting a belief on the part of the respondent that the complainant would consent, not a belief that she did in fact consent.  None of these factors address or relate in any realistic way to the events that actually took place at the time of the alleged sexual assault.  They are therefore incapable of supporting a defence of honest but mistaken belief in consent. 

                  

53               What is relevant to a possible defence of honest but mistaken belief is the account of the events that took place in the bedroom, as well as any additional information explaining why the respondent might have honestly interpreted those events at that time to be consistent with consent.  In certain cases, evidence of prior sexual activity between the two parties may be relevant in this respect.  In the present case, however, the dissimilarities between the alleged assault and the acts that took place in the encounter thirteen days earlier can only lead one to conclude that evidence of that encounter was neither relevant to, nor capable of supporting, an honest belief on the part of the accused that the complainant was consenting at the time of the assault. 

 

54               In the present case, moreover, the respondent's evidence is very sketchy as to the events that took place in the bedroom.  He asserts that the complainant was a willing participant, that she only resisted with respect to the timing of the use of the condom, and that "as things were going on, it was getting hot", leading him to ejaculate on her stomach.  He asserts that intercourse never even took place.  The complainant, on the other hand, claims to have vigorously resisted him, both verbally, by saying repeatedly "No Darryl" and "I don't want this", and physically.  His strength and considerably greater weight, however, were too much for her and caused her then to go into a state of shock, during which he penetrated her. 

 

55               There is nothing in the totality of this evidence, coming from either the respondent or the complainant, to lend any air of reality to the possibility that the respondent may have held a mistaken belief as to her consent.  Nor, for that matter, would it have been possible for a reasonable jury to splice together some of her evidence and some of his with respect to the encounter, and to settle upon a reasonably coherent set of facts that could support the defence of mistaken belief in consent.  A reasonable jury, properly instructed and acting judiciously, could not come to a conclusion both that the complainant did not consent to the sexual activity and that the respondent could have had a mistaken belief about her non-consent.  For all of these reasons, the trial judge was correct in refusing to put the defence of mistake of fact to the jury. 

 

56               As such, I would allow the Crown's appeal and restore the conviction.

 

                   The following are the reasons delivered by

 

57               Sopinka J. -- I have read the reasons for judgment written by my colleagues the Chief Justice and Justice L'Heureux-Dubé and agree with the disposition of the appeal proposed by them.  While I agree with many of the comments of L'Heureux-Dubé J. with respect to the defence of honest but mistaken belief in consent, in my view it is unnecessary and undesirable to attempt to exhaustively define the constituents of the defence in this case.  As my colleague properly observes in her reasons, it is a simpler task to delimit the absence of an air of reality than to define in law its constituent components.  The reason is that determining whether an air of reality exists involves an examination of the evidence in each case to ascertain whether there is evidence which, if accepted, would enable a properly instructed jury acting reasonably to acquit.  Attempts to define in advance when such evidence will be present is a hazardous, and in most cases fruitless, task.  Accordingly, I prefer to dispose of this case by stating briefly why such evidence does not exist in this case.

 

58               The issue of the application of this defence does not arise unless the jury finds that the actus reus charged has been made out beyond a reasonable doubt.  In this case the actus reus was sexual intercourse with the complainant without her consent.  The jury convicted the respondent and concluded, therefore, that there was no consent to intercourse.  The appropriate question in this appeal is:  Was there some evidence that the respondent honestly believed that the complainant consented to intercourse?  The evidence of the complainant is of no assistance to the respondent.  As for the evidence of the respondent, he testified that no intercourse took place.  This is inconsistent with a belief in consent to intercourse.  Although less stark, the respondent's position is comparable to that of an accused who defends on the basis of mistaken identity.  Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction.

 

                   The reasons of Cory, Iacobucci and Major JJ. were delivered by

 

I.                 Iacobucci J. -- In my view, the trial judge did not err in withholding from the jury the defence of honest but mistaken belief in consent because he was entitled to conclude that there was, in all the circumstances of the case, no air of reality to the defence.  In this respect, it is noteworthy that the respondent testified that no sexual intercourse had taken place between him and the complainant.  However, a report from the medical examination of the complainant was admitted into evidence as part of an agreed statement of facts, and although the report indicated no physical injury, it noted the presence of redness on the inner labia which was consistent with either consensual or non-consensual intercourse.  This was a material discrepancy between what the complainant and accused said had occurred going to the credibility of the accused's version of what happened and ultimately to the air of reality issue.  In effect, the accused denied that any intercourse occurred but alternately argues that if it did occur, he thought there was consent.  Under these circumstances, it makes no sense to apply the air of reality defence to such an inconsistent position.

 

II.                I am also of the view that the trial judge committed no error in ruling that evidence of previous sexual activity was inadmissible.  Accordingly, I would dispose of the appeal in the manner proposed by L'Heureux-Dubé J.

 


                   Appeal allowed and conviction restored.

 

                   Solicitor for the appellant:  Paul C. Bourque, Edmonton.

 

                   Solicitors for the respondent:  Macleod Dixon, Calgary.

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