Supreme Court Judgments

SUPREME COURT OF CANADA

Pappajohn v. The Queen, [1980] 2 S.C.R. 120

Date: 1980-05-20

George Pappajohn Appellant;

and

Her Majesty The Queen Respondent.

1979: October 22; 1980: May 20.

Present: Martland, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Rape — Defence of mistake of fact not put to the jury — Honest belief that consent to intercourse — Mens rea — Reasonable belief — Criminal Code, R.S.C. 1970, c. C-34, s. 143.

The appellant listed his house for sale with the real estate firm with which the complainant, a real estate saleswoman, was associated. After an appointment at a downtown restaurant for lunch to discuss the house sale, during which lunch a good deal of liquor was consumed by both parties, they went to the appellant's house, the one which was listed for sale. There, the complainant contended, she was raped over her protests and strug­gles, while the appellant claims he had an amorous interlude involving no more than a bit of coy objection on her part and several acts of intercourse with her consent. Whatever occurred in the house, the complai­nant eventually ran out of the house naked with a man's bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash. She was in an upset state and exhibited great fear and emotional stress.

When the defence closed its case and before the trial judge commenced his charge, the jury was excluded while counsel for the appellant argued that the trial judge should put the defence of mistake of fact to the jury, i.e. that the judge tell the jury that if the appellant entertained an honest though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present, and the appellant would be entitled to an acquittal. The trial judge refused to accede to the request and the appellant was eventually convicted of the rape of the complainant. The conviction was affirmed in the Court of Appeal with one dissent, upon the fact that the trial judge failed to put to the jury the defence of mistake of fact, the majority adopting the view that the issue emerging from the evidence was a simple one of consent or no consent.

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Held (Dickson and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Pigeon, Beetz, McIntyre and Chouinard JJ.: It is well established that the trial judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused's counsel or not. This, however, does not mean that the trial judge becomes bound to put every defence suggested to him by counsel. There must be in the evidence some basis upon which the defence can rest and the judge must consider, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. The test to be applied is that there must be in the record some evidence which would convey a sense of reality in the submission. In this case, to convey such a sense of reality, there must be some evidence which if believed' would support the existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of .intercourse. Here, the complainant's version excludes consent and any possible mistaken belief in consent, while the appellant's version speaks of actual consent and no suggestion of any mistaken belief could arise, and in this situation the only realistic issue which can arise is the simple issue of consent or no consent. To require the putting of the alternative defence of mistaken belief in consent, the evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.

Per Martland J.: If a case arises which raises the issue as to whether, on a charge of rape, an accused person who seeks to rely upon a defence of mistake of fact must, in order to succeed, establish that his mistake was reasonable as well as honest, it is open to this Court to determine that issue, and it is not precluded from so doing by the judgment in Beaver v. The Queen, [1957] S.C.R. 531.

Per Dickson and Estey JJ., dissenting: The point in this appeal is whether the trial judge erred in failing to put before the jury a defence of mistaken belief in consent, such failure being a non-direction amounting to misdirection.

With respect to the mens rea: The mens rea which is required, and its nature and extent, will vary with the particular crime: it can only be determined by detailed examination of the actus reus of the offence. In a case of alleged rape, where a fact or circumstance is not known to, or is misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the woman,

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his act is not culpable in relation to that element of the offence. The actus reus of rape is complete upon {a) an act of sexual intercourse; (b) without consent. An affir­mative finding as to each of these elements does not finish the inquiry, however, for the requirement that there be a guilty intention must also be satisfied. The great weight of authority is in support of the view that the accused's perception of the woman's consent is an important aspect of any prosecution for the crime of rape. Intention or recklessness must be proved in rela­tion to all elements of the offence, including absence of consent.

With respect to the defence of mistake of fact: An honest and reasonable mistake of fact is on the same footing as the absence of a reasoning faculty, as with infants, or impairment of the faculty, as in lunacy. Culpability rests upon commission of the offence with knowledge of the facts and circumstances comprising the crime. If the accused's act would be innocent, according to facts as he believed them to be, he does not have the criminal mind and ought not be punished for his act. 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. Whether the mistake is rooted in an accused's mistaken perception, or is based upon objective, but incorrect, facts confided to him by another, should be of no consequence.

With respect to whether a defence of honest, though mistaken, belief in consent must be based on reasonable grounds: The mind with which the jury is concerned is that of the accused, not that of a reasonable man. By importing a standard external to the accused, there is created an incompatible mix of subjective and objective factors. If an honest lack of knowledge is shown, then the subjective element of the offence is not shown. To apply the reasonable standard in this appeal, the Court would defy accepted and sound principles of criminal law.

With respect to the Plea and the Evidence: It is not necessary that an accused specifically plead mistake. If there was "some" evidence to "convey a sense of reality" to a defence of mistake as to consent, then the jury ought to have been instructed to consider that plea. Here, even on the complainant's version there is much common ground with the appellant's version which supports his defence of belief in consent, and there is also circumstantial evidence supportive of a plea of belief in consent.

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[Director of Public Prosecutions v. Morgan et al., [1975] 2 All E.R. 347, [1976] A.C. 182; R. v. Plummer and Brown (1976), 24 C.C.C. (2d) 497; Beaver v. The Queen, [1957] S.C.R. 531; Wu v. The King, [1934] S.C.R. 609; Kelsey v. The Queen, [1953] 1 S.C.R. 220; R. v. Workman and Huculak, [1963] S.C.R. 266, referred to.]

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing, by a majority, an appeal by the appellant from his conviction of rape. Appeal dismissed, Dickson and Estey JJ. dissenting.

Douglas McK. Brown, Q.C., for the appellant.

John Hall, for the respondent.

The judgment of Martland, Pigeon, Beetz, McIntyre and Chouinard JJ. was delivered by

McINTYRE J.—The appellant appeals his rape conviction, which was affirmed in the Court of Appeal for British Columbia with one dissent, upon the ground that the trial judge failed to put to the jury the defence of mistake of fact. That ground is expressed in the appellant's factum in these words:

Did the learned trial judge err in failing to instruct the jury on the question of honest belief by the accused that the Complainant consented to intercourse and thus on the facts of this case, failed to put properly before the jury a defence, such failure being a non-direction amounting to misdirection?

A consideration of the facts of the case is vital to a resolution of the problem it poses. The complainant was a real estate saleswoman employed by a well-known and well-established real estate firm in Vancouver. She was successful in her work. The appellant is a businessman who was anxious to sell his home in Vancouver and he had listed it for sale with the real estate firm with which the complainant was associated. She was to be responsible for the matter on her firm's behalf. On August 4, 1976, at about 1:00 p.m., she met the appellant by

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appointment at a downtown restaurant for lunch. The purpose of the meeting was to discuss the house sale. The lunch lasted until about 4:00 or 4:30 p.m. During this time, a good deal of liquor was consumed by both parties. The occasion became convivial, the proprietor of the restaurant and his wife joined the party, and estimates of the amount of alcohol consumed varied in retrospect, as one would expect. It does seem clear, however, that while each of the parties concerned had a substantial amount to drink, each seemed capable of functioning normally.

At about 4:00 p.m., or shortly thereafter, they left the restaurant. The appellant drove the complainant's car while she sat in the front passenger seat. They went to the appellant's house, the one which was listed for sale, to further consider ques­tions arising in that connection. Up to the time of arrival at the home, at about 4:30 or 5:00 p.m., there is no significant variation in their account of events. From the moment of arrival, however, there is a complete divergence. She related a story of rape completely against her will and over her protests and struggles. He spoke of an amorous interlude involving no more than a bit of coy objection on her part and several acts of inter-course with her consent. Whatever occurred in the house, there is no doubt that at about 7:30 p.m. the complainant ran out of the house naked with a man's bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash. She arrived at the door of a house nearby and demanded entry and protection. The occupant of the house, a priest, admitted her. She was in an upset state and exhibited great fear and emotional stress. The police were called and these proceedings followed. More detailed reference to the facts will be made later.

When the defence closed its case and before the trial judge commenced his charge, the jury was excluded while counsel for the appellant argued that on the facts of the case as it appeared from the evidence, the trial judge should put the defence of mistake of fact to the jury. He contended that the appellant was entitled to have the judge tell the jury that if the appellant entertained an honest

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though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present, and the appellant would be entitled to an acquittal. Reliance for this proposition was placed upon Director of Public Prosecutions v. Morgan[2] and R. v. Plummer and Brown[3]. The trial judge refused to accede to defence counsel's request and in disposing of the motion had this to say:

THE COURT: In this case the complainant has testified that the accused had intercourse with her during a three-hour period some five times without her consent. The accused has testified that the acts of intercourse that he had with the complainant were all with her consent and that the only resistance to his amorous advances was of a token variety, and that orally along lines of: "Oh George, what are you doing?"

There are many conflicts in the evidence during the critical period of time when the acts of sexual intercourse took place, and the jury will have to be directed to accept either the complainant's or the accused's ver­sion of the facts.

The essence of the case as I see it is essentially has the Crown negatived the complainant's consent?

Later, he said, after referring to the Morgan case and the case of Plummer and Brown:

Although the concept of mens rea underlies all criminal prosecutions I know of no obligation to instruct a jury in connection with this concept. I acknowledge and am in agreement with counsel's statements that in appropriate circumstances defences arise in favour of accused persons, even where no intent is apparent from the statute creating an offence, and these defences at a minimum are accident and mistake of fact. Although the reason­ing in Director of Public Prosecutions and Morgan may have limited application to Canadian Criminal Law, I am wholly in accord with the attempt made by the learned Trial Judge in placing before the jury in that case what I conceive to be an alternative defence, namely, a mistaken view of the facts. That defence was justified in that case because three of the four accused persons pledged their oaths to the assertion that the victim's husband, also a co-accused, had told them before attending at the victim's residence that his wife was prone to put on a show of struggling but that this would only be a charade stimulating her sexual excitement.

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In answer to my questions during argument defence counsel has suggested that acts of familiarity prior to the time of intercourse, independently testified to by disinterested persons, and the accused's evidence where he alluded to only oral and token resistance to his advances, constituted evidence upon which I could con­clude that the defence of mistake of fact should be left to the jury.

In addition to that evidence, I have reviewed the evi­dence of the accused and I regret to say, notwithstand­ing the forceful submission of defence counsel, I do not recognize in the evidence any sufficient basis of fact to leave the defence of mistake of fact to this jury.

In the Court of Appeal, this ruling found support in the majority judgment of Farris C.J.B.C. with whom Craig J.A. agreed. The majority adopted the view that the issue emerging from the evidence was a simple one of consent or no consent. In a dissenting judgment, Lambert J.A. was of the opinion that there was sufficient evidence to put the defence to the jury. He would have directed the jury that the accused was entitled to an acquittal if the jury found that he entertained an honest and reasonably held mistaken belief in the existence of consent. This is a view which I cannot share in view of the pronouncement in this Court in Beaver v. The Queen[4], at p. 538.

It is well established that it is the duty of a trial judge in giving directions to a jury to draw to their attention and to put before them fairly and completely the theory of the defence. In performing this task, it is also clear that the trial judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused's counsel or not. He must give all necessary instructions on the law relating to such defences, review the relevant evidence and relate it to the law applicable. This, however, does not mean that the trial judge becomes bound to put every defence suggested to him by counsel. 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

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put a defence. Indeed, where it is not present he should not put a defence for to do so would only be to confuse.

What is the standard which the judge must apply in considering this question? Ordinarily, when there is any evidence of a matter of fact, the proof of which may be relevant to the guilt or innocence of an accused, the trial judge must leave that evidence to the jury so that they may reach their own conclusion upon it. Where, however, the trial judge is asked to put a specific defence to the jury, he is not concerned only with the existence or non-existence of evidence of fact. He must consid­er, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. This question has been considered frequently in the courts: See Wu v. The King[5] and Kelsey v. The Queen[6]. The test to be applied has, in my opinion, been set down by Fauteux J., as he then was, in Kelsey v. The Queen.

The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.

In addition, I would refer to the words of Judson J., speaking for the majority, in R. v. Workman and Huculak[7]  where he said:

... I can see no possible ground for any instruction that, on any view of the evidence Huculak could be an accessory after the fact and not a principal. Before this could be done, there must be found in the record some evidence which would convey a sense of reality in the submission (Kelsey v. The Queen, 105 C.C.C. 97 at p. 102, [1953] 1 S.C.R. 220 at p. 226, 16 C.R. 119 at p. 125). Failure of counsel to raise the matter does not relieve the trial judge of his duty to place a possible defence before the jury but there must be something beyond fantasy to suggest the existence of the duty.

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It seems to me that the trial judge, in the passage above quoted from his ruling on this ques­tion, has applied that test. He has heard all the evidence. He heard the argument advanced by counsel. He considered the whole matter with counsel's argument in mind and he concluded, "I do not recognize in the evidence any sufficient basis of fact to leave the defence of mistake of fact to the jury". In my view, he directed himself correctly in law.

In relating the law to the facts of any case, we must keep in mind what it is that the trial judge must look for in the evidence in deciding whether there is, in the words of Fauteux J., "some evi­dence or matter apt to convey a sense of reality in the argument, and in the grievance". In this case, to convey such a sense of reality, there must be some evidence which, if believed, would support the existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of intercourse which admittedly occurred. This requires a more detailed recital of the evidence than would ordinarily be necessary.

The complainant, after describing the events of the early afternoon in the restaurant, said that upon entering into the house where discussions were to take place regarding its sale, the appellant seized her and pushed her down the hallway to the bedroom. She resisted his pushing and tried to reason with him. He said that he was going to break her and began, as soon as the bedroom was reached, to remove her blouse. She said she protested and screamed and grew hysterical and tried to reason with him but was not fighting him in a physical way. When he continued to remove her blouse, she realized he was going to rape her. She tried to escape but he threw her onto the bed and she became totally hysterical. She just lay on the bed and screamed. She then said she tried to rise from the bed but he held out his arm and told her to remove his cufflinks, she refused and then she tried to escape. He pushed her back onto the bed, removed her skirt, nylons and panties, but not her brassiere or slip. She remained on the bed scream­ing, then she observed that he was undressed, although did not actually recall him undressing. She described various conversations in which she

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told him she was not able to take birth control pills and was without any contraceptive protection. She said that she and the man she lived with were attempting to have a baby and she was at that time ovulating. This information came, she said, from her lover who was a gynaecologist and he later gave evidence confirming these matters. She tried to persuade the appellant to desist but he would not be put off and finally had intercourse with her against her will. She said that the appellant had told her he would not ejaculate in her and she described three short acts of intercourse all against her will in which no ejaculation occurred. After some time the appellant left the bed and got a bow tie from a drawer and a sashcord from a dressing gown. Again, against her will, he tied the bow tie over her mouth as a gag and tied her hands behind her back. She struggled against this and threw herself from the bed onto the floor. He put her back on the bed and while her hands remained tied had intercourse again from the rear. During all this time she said she was at times pleading and reasoning with him, at times hysterical and screaming, and at times endeavouring to avoid and escape him. She said at one stage when she saw him get the tie and cord that she decided that he was going to kill her. Shortly after the incident of falling off the bed, and by this time some three hours had elapsed, she said that he left the room. She seized the opportunity to escape and fled from the house naked with her hands still tied behind her back. She ran down an alley and pounded at the door of a nearby house. She was admitted and the police were called. During all this period, she insisted that she did not consent to any of the acts of intercourse. She insisted that she was hysterical, fearful and helpless in his hands and she escaped as soon as she could.

The appellant, in giving evidence on his own behalf, said that upon arrival at the house, he entered and went immediately to the bathroom. On his return to the front of the house, he led the complainant into the living room. They sat on a couch and began to kiss. During this episode, she removed her necklace and left her car keys on a table in the living room. They then moved into the bedroom where she consented to the removal of

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her clothes. He hung her blouse in the closet and put her other garments, after folding them, at the foot of the bed. He agreed that she refused to undo his cufflinks but he undressed and they then had intercourse with her consent. He admitted to three occasions and admitted that he had had no ejaculations. The whole performance, while with her consent, was not very successful. He admitted getting the tie to gag her and the cord to bind her, saying that it was done as an act of bondage to stimulate sexual activity. He said that when bound she suddenly threw herself from the bed and was hysterical and screaming. He said that he put her back on the bed. He left to find a cigarette and on his return she had gone. He did not know where. He waited for some time then put some clothes on and had a look around the house and the yard but could not find her. He insisted that everything was done with her consent. She made no serious resistance to his advances beyond making such coy inquiries as "George, what are you doing?" He said he would not have forced her if she had resisted, that she made no objection to his advances, and, that when she threw herself from the bed he desisted from any further efforts at intercourse and did not have intercourse after that event.

It will be seen at once that there is a fundamental conflict between the two stories. Her version excludes consent and any possible mistaken belief in consent. His version speaks of actual consent and no suggestion of any mistaken belief could arise. To find support for the defence asserted by the appellant, the other evidence must be considered.

When the complainant gained admission to the house where she sought help, she was observed to be in a distraught and emotional condition. She complained that she had been assaulted or raped or that someone was attempting to rape her. She was evidently fearful. She wanted to have her gentleman friend called and the call was made. The police were called as well. The priest, who had

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admitted her to the house, removed the cords from her wrists and found that they had been tightly tied. He gave evidence that he had some difficulty in untying her.

After the complainant had spoken to the police, they went to the appellant's house. Some forty minutes had elapsed since she had left it. The appellant asked if they came about the girl. He denied he had raped her. He said she was willing, that she didn't resist much, and that she had suddenly become hysterical and had run away. He didn't follow her because he didn't know what to do and when he first discovered her absence he was naked himself. In the house, the police found the necklace in the living room with the car keys. They found the complainant's blouse hanging in the closet in the bedroom, the complainant herself had seen it there before her escape. They found her underclothes folded at the foot of the bed with the exception of her slip which was in the bed sheets. Further examination revealed that the clothing of the complainant was undamaged, that is, untorn, though the complainant said that she did observe a torn shoulder strap in her slip the next day. Medical evidence found the following physical markings or injuries upon the body of the complainant. There were three scratches, two on her chest and one on her back, a red mark on the inside of her upper right arm, reddened areas on the front of both wrists. There was no bruising or redness on her mouth, throat, neck, the inside of her thighs or legs, and no injury or any kind of redness was observed about the vaginal area.

In summary then, this was the state of evidence when the trial judge was called upon to make his ruling. It became his task to apply the rule enun­ciated above. In assessing his resolution of the matter, we must consider the situation as it pre­sented itself to him at the time. Speculation as to what the jury did, or would have done after being charged, is not relevant here.

With that thought in mind and, bearing in mind that the object of the judicial search must be

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evidence of a mistaken but honest belief in the consent of the complainant, one must first ask the question "Where is this evidence to be found?" It cannot be found in the evidence of the complainant. She denies actual consent and her evidence cannot provide any support for a mistaken belief in consent. Her conduct, according to her description, is that of a terrified, hysterical, non-consenting woman who resisted the appellant's advances, albeit unsuccessfully, and when able fled from his house in search of assistance. Turning then to the evidence of the appellant, it immediately becomes apparent that his evidence speaks of actual consent, even cooperation, and leaves little if any room for the suggestion that she may not have been consenting but he thought she was. The two stories are, as has been noted before, diametrically opposed on this vital issue. It is not for the trial judge to weigh them and prefer one to the other. It is for him in this situation, however, to recognize the issue which arises on the evidence for the purpose of deciding what defences are open. In this situation, the only realistic issue which can arise is the simple issue of consent or no consent. In my opinion, the trial judge was correct in concluding that there simply was not sufficient evidence to justify the putting of the defence of mistake of fact to the jury. He left the issue of consent and that was the only one arising on the evidence.

In reaching this conclusion, I am not unmindful of the evidence of surrounding circumstances which were said to support the appellant's conten­tion. I refer to the absence of serious injury suf­fered by the complainant and the absence of damage to clothing, as well as to the long period of time during which the parties remained in the bedroom. These matters may indeed be cogent on the issue of actual consent but, in my view, they cannot by themselves advance a suggestion of a mistaken belief. The finding of the clothes at the foot of the bed, the necklace and the keys in the living room, are equally relevant on the issue of actual consent and, in my view, cannot affect the issue which was clearly framed by the opposing assertions of consent and non-consent.

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It would seem to me that if it is considered necessary in this case to charge the jury on the defence of mistake of fact, it would be necessary to do so in all cases where the complainant denies consent and an accused asserts it. 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. In R. v. Plummer and Brown, supra, Evans J.A., (as he then was) speaking for the Ontario Court of Appeal, considered that there was such evidence as far as Brown was concerned and directed a new trial because the defence had not been put. In that case, the complainant had gone to Plummer's "pad" where she had been raped by Plummer. Brown entered the room where the rape occurred after Plummer had gone. Apparently he had arrived at the house separately from Plummer. It was open on the evidence to find that he was unaware then that Plummer had threat­ened the complainant and terrorized her into submission. He had intercourse with her and she said that because of continuing fear from Plummer's threats, she submitted without protest. In these special circumstances, the defence was required. The facts clearly established at least an air of reality to Brown's defence. In Morgan, there was evidence of an invitation by the complainant's husband to have intercourse with his wife and his assurance that her show of resistance would be a sham. In other words, there was evidence explaining, however preposterous the explanation might be, a basis for the mistaken belief. In the case at bar, there is no such evidence.

Where the complainant says rape and the accused says consent, and where on the whole of the evidence, including that of the complainant, the accused, and the surrounding circumstances, there is a clear issue on this point, and where as here the accused makes no assertion of a belief in consent as opposed to an actual consent, it is unrealistic in the absence of some other circumstance

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or circumstances, such as are found in the Plummer and Brown and Morgan cases, to consid­er the judge bound to put the mistake of fact defence. In my opinion, the trial judge was correct in refusing to put the defence on the evidence before him.

I might add that I have had the advantage of reading the reasons of my brother Dickson J., and while it is apparent that I am unable to accept his view on the evidentiary question, I am in agreement with that part of his judgment dealing with the availability as a defence to a charge of rape in Canada of what is generally termed the defence of mistake of fact.

I would dismiss the appeal.

The following are the reasons delivered by

MARTLAND J.—I agree with the opinion expressed by my brother McIntyre that the trial judge was correct in concluding that there was not sufficient evidence to justify putting the defence of mistake of fact to the jury and with his proposed disposition of this appeal.

I would, however, like to make a comment in respect of one passage in his reasons which refers to the dissenting opinion of Lambert LA. in the Court of Appeal. Lambert J.A. was of the opinion that there was sufficient evidence to put the defence of mistake of fact to the jury and that the trial judge should have directed the jury that the accused was entitled to an acquittal if the jury found that he entertained an honest and reasonably held belief in the existence of consent. Dealing with the words underlined, my brother McIn­tyre says that he cannot share this view because of the pronouncement of this Court in Beaver v. The Queen[8], at p. 538. The passage to which he refers is contained in the judgment of Cartwright J. (as he then was) and reads as follows:

In Regina v. Tolson ((1889), 23 Q.B.D. 168), Stephen J. says at p. 188:

... I think it may be laid down as a general rule that an alleged offender is deemed to have acted under

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that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.

I am unable to suggest any real exception to this rule, nor has one ever been suggested to me.

and adds at p. 189:

Of course, it would be competent to the legislature to define a crime in such a way as to make the existence of any state of mind immaterial. The ques­tion is solely whether it has actually done so in this case.

I adhere to the opinion which, with the concurrence of my brother Nolan, I expressed in The Queen v. Rees ([1956] S.C.R. 640 at 651) that the first of the state­ments of Stephen J. quoted above should now be read in the light of the judgment of Lord Goddard C.J., con­curred in by Lynskey and Devlin JJ., in Wilson v. Inyang ([1951] 2 K.B. 799) which, in my opinion, rightly decides that the essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining that essential question.

The paragraph which follows the quotation from Stephen J. in R. v. Tolson is an obiter dictum. The Court which determined the Beaver case was a five-man court and two of the judges dissented on the disposition of the case. It involved a charge of being in possession of a drug. The accused was in physical possession of a package which contained drugs, but he said he never knew that the package contained drugs. The Courts below had held that this furnished no defence to the charge under subs. 4(1)(d) of the Opium and Narcotic Drug Act. The issue before the Court, and on which it divided, was whether the statute created an absolute prohi­bition, or whether the want of knowledge as to the nature of the substance found in the possession of the accused furnished a defence. The dissenting minority held the view that mens rea was not an essential element of the offence charged. The reasonableness of the belief of the accused was not in issue.

Cartwright J., in the passage cited, relies on a statement of Lord Goddard C.J. in Wilson v. Inyang[9].

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That was a case in which the charge was that of wilfully and falsely using the title of "physician" contrary to s. 40 of the Medical Act, 1858. The offence, as defined, included a specific mental ingredient.

Speaking of that case, Bridge J., who delivered the judgment of the Court of Appeal in Director of Public Prosecutions v. Morgan[10], said at p. 190:

Wherever the definition of a crime includes as one of its express ingredients a specific mental element both the evidential and the probative burden lie upon the Crown with respect to that element. Typical examples are dishonesty in theft and knowledge or belief in han­dling. In seeking to rebut the Crown's case against him in reference to his state of mind the accused may and frequently does assert his mistaken belief in non-existent facts. Of course it is right that in this context the question whether there were reasonable grounds for the belief is only a factor for the jury's consideration in deciding whether the Crown has established the neces­sary mental element of the crime. This is because the issue is already before the jury and no evidential burden rests upon the accused.

The decision of the Divisional Court in Wilson v. Inyang, [1951] 2 K.B. 799, is to be understood in the light of this principle. The court there rejected the argument that an acquittal by a magistrate of a defendant charged with an offence under section 40 of the Medical Act 1858 should be reversed on appeal by case stated on the ground that the defendant had no reasonable ground for his belief that he was entitled to call himself a "physician." Lord Goddard C.J. said, at p. 803:

"If he has acted without any reasonable ground, and has refrained from making any proper inquiry, that is generally very good evidence that he is not acting honestly. But it is only evidence, ..."

The statute, however, under which that prosecution was brought required the prosecution to prove that the defendant acted "wilfully and falsely." Inevitably, therefore, if this subjective mental element was not proved the prosecution failed.

The remarks of Lord Goddard C.J. in Wilson v. Inyang were made with reference to an offence

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under the section of the Medical Act and do not purport to be a general definition of the requisites of a defence of mistake of fact in all criminal cases.

For these reasons, it is my opinion that if a case arises which raises the issue as to whether, on a charge of rape, an accused person who seeks to rely upon a defence of mistake of fact must, in order to succeed, establish that his mistake was reasonable as well as honest, it is open to this Court to determine that issue, and that it is not precluded from so doing by the judgment in the Beaver case. On the reasoning of my brother McIntyre in this case, with which I have agreed, that issue does not arise in the present appeal.

The reasons of Dickson and Estey JJ. were delivered by

DICKSON J. (dissenting)—George Pappajohn, a Vancouver businessman, was found guilty before a judge and jury on an indictment charging rape. From that conviction, an appeal was taken to the Court of Appeal of British Columbia. That Court, by a majority, dismissed the appeal.

The principal issue the jury had to determine was whether the complainant consented to those acts of intercourse which, it is not disputed, took place. At trial, however, counsel for the appellant advanced an alternative "defence" which, in his submission, ought also to have been left with the jury. It was argued that even were the jury to decide that the acts transpired in the absence of consent, the appellant could, nonetheless, be excused from criminal responsibility if he had honestly, albeit mistakenly, believed that the complainant was a willing partner. Though the trial judge did not dismiss the defence as being unavailable at law, in the circumstances he disallowed the plea, ruling that there was insufficient evidential foundation to warrant an instruction on the issue. The point in this appeal is whether the trial judge erred in failing to put before the jury a defence of mistaken belief in consent, such failure being a non-direction amounting to misdirection.

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In the main, the Court is here concerned with issues of mens rea and mistake of fact. Nonetheless, an appreciation of the evidence led at trial is fundamental to the appeal. Recognition of the defence, if unavailable on the facts of his case, is of no value to the appellant. Conversely, the appellant cannot succeed, regardless of the strength of those facts, unless and until mistake, or honest belief in consent, is accepted as a defence in law to a charge of rape.

It will be convenient to identify the pivotal issues on which the appellant's case turns:

(1) What is the mens rea of rape?

(2) Is a mistaken belief in consent available in defence to the charge of rape?

(3) If so, does mistake afford a defence only where the mistake is one which is held both honestly and on reasonable grounds?

(4) Did the trial judge err in the case at bar in ruling there was not sufficient basis of fact to justify leaving the defence of mistake of fact to the jury?

I

Mens Rea

There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment, unless the commission of the crime was voluntarily directed by a willing mind. Blackstone spoke of a "vicious act" consequent upon a "vicious will" (Commentaries, Book IV, at p. 21). Proof of the mental element is an essential and constituent step in establishing criminal responsibility. Parliament can, of course, by express words, create criminal offences for which a guilty intention is not an essential ingredient. Equally, mens rea is not requisite in a wide category of statutory offences which are concerned with public welfare, health and safety. Subject to these exceptions, mens rea,

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consisting of some positive states of mind, such as evil intention, or knowledge of the wrongfulness of the act, or reckless disregard of consequences, must be proved by the prosecution. The mental element may be established by inference from the nature of the act committed, or by additional evidence.

The mens rea which is required, and its nature and extent, will vary with the particular crime; it can only be determined by detailed examination of the actus reus of the offence. Speaking generally, at least where the circumstance is not "morally indifferent", the mental element must be proved with respect to all circumstances and consequences that form part of the actus reus. It follows that, in a case of alleged rape, where a fact or circum­stance is not known to, or is misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the woman, his act is not culpable in relation to that element of the offence:

… for if the actus reus includes surrounding circum­stances, it cannot be said to be intentional unless all its elements, including those circumstances, are known. (Glanville Williams, Criminal Law, The General Part, at p. 141). (Emphasis added.)

Taking these principles, then, what is the mental element required under s. 143 of the Criminal Code on a charge of rape? This crime was historically regarded as an offence of physical violence. Blackstone defined rape as "the carnal knowledge of a woman forcibly and against her will" (Com­mentaries, supra, at p. 210). A more comprehen­sive definition of rape at common law is found in Archbold, Criminal Pleading, Evidence and Prac­tice (38th ed.) (1937), at para. 2871:

Rape consists in having unlawful sexual intercourse with a woman without her consent by force, fear or fraud (citing 1 East's Pleas of the Crown 434 and 1 Hale's Pleas of the Crown 627).

Section 143 of our Code, in brief, defines rape as an act of sexual intercourse with a female person without her consent, or with consent if that consent is extorted by threats or fear of bodily harm.

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It will be seen that the statutory definition does not depart in any significant way from the common law definition. For all practical purposes, the Criminal Code merely codifies the common law. The essence of the crime consists in the commission of an act of sexual intercourse where a woman's consent, or genuine consent, has been withheld.

The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent. An affirmative finding as to each of these elements does not finish the inquiry, however, for, as I have indicated, the requirement that there be a guilty intention must also be satisfied. The important question then arises as to whether at common law, and under s. 143 of the Code, the guilty intention for rape extends to the element of consent. In principle, it would seem that it should, as intention as to consent is central to responsibility; a man should only be punished where he proceeds with an act of violation in the knowledge that consent is withheld, or in a state of recklessness as to whether willingness is present. The intention to commit the act of intercourse, and to commit that act in the absence of consent, are two separate and distinct elements of the offence.

Is the accused's perception of consent relevant to a charge under s. 143 of the Criminal Code? The argument against the application of Director of Public Prosecutions v. Morgan[11] in Canada is that the Code creates a statutory offence of rape which does not expressly advert to, or require, that there be a state of mind or intent to proceed in the absence of consent. The issue of consent as an aspect of mens rea for rape does not appear to have been raised directly in English authorities previous to the Morgan decision, although Lord Denman in R. v. Flattery[12] had occasion to say:

There is one case where a woman does not consent to the act of connection and yet the man may not be guilty of rape, that is where the resistance is so slight and her behaviour such that the man may bona fide believe that she is consenting ... (at p. 392)

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The question has been topical in the Australian courts for some time, and we have the benefit of a body of case law which deals with the mental element and honest belief as a defence of mistake. The first decision is R. v. Hornbuckle[13] (the Full Court of Victoria sitting) which established a defi­nition of the mental element in rape, followed generally by the Australian courts. In the course of delivering judgment, McFarlan J. had the following to say:

To hold that knowledge that the act of intercourse was occurring sufficiently establishes the intent, because the man who knows he is committing the act must intend it, even if prima facie warranted, seems to us to fail to distinguish "intent to have intercourse" from "intent to have intercourse without the consent of the female". (at p. 287)

The Hornbuckle case was followed in R. v. Daly[14]. The appeal did not raise an issue of honest belief or mistake, but reached the Court on the question of whether the jury ought to have been instructed that one of the elements of rape is an intention to have intercourse without consent. The Hornbuckle principle was reaffirmed by Smith J.:

... the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting, or else realized she might not be, and determined to have intercourse with her whether she was consenting or not. (at pp. 258-9)

A later decision by the Appellate Court of New South Wales, R. v. Flaherty and others[15], which was concerned with a plea of mistaken belief, conflicts with Daly, at least on the issue of the burden of proof. Though Flaherty accepts the defence of honest and reasonable mistake, Asprey J.A. states (at p. 148): " ... the state of mind of the accused is no part of the Crown case, except to the extent that the Crown must prove an intention to perform the physical act." In his view, an accused wishing to benefit from the defence bears the evidential burden to introduce credible ma­terial upon which a jury can conclude that he

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honestly, but mistakenly, believed in consent, and had reasonable grounds for so doing.

In R. v. Flannery and Prendergast[16], the Hornbuckle and Daly line of authority, as to the Crown's burden to prove knowledge of consent, was followed. Flaherty was not mentioned. Once again, honest belief was in issue, and in dealing with the defence the Court considered the mental element for rape. It was held that where an accused has not perceived an absence of consent and honestly believed there was consent, the exist­ence of the belief negatives the intention requisite to the commission of the crime.

One of the more recent cases is R. v. Sperotto, R. v. Salvietti[17]. A five-man appellate court heard the case, which raised the defence of honest belief. On the question of the mental element, the Court held:

In order to convict the accused of the crime of rape and, subject to what is hereinafter said, to establish this intention on his part the Crown must prove beyond a reasonable doubt that when the accused had intercourse with the woman either (i) he was aware that she had not consented, or (ii) he realized that she might not be consenting and was determined to have intercourse with her whether she was consenting or not. (at p. 226)

Moreover, the Court held that Flaherty's case was not intended to be read as asserting that the state of mind of the accused is no part of the Crown case in relation to the intention of the accused to have intercourse with the woman, regardless of consent.

In Morgan, each of the Law Lords accepted the element of knowledge or recklessness as to consent, as a feature of the guilty intention in the crime of rape. In particular, Lord Hailsham endorsed the test formulated by the trial judge, that the pros­ecution must prove that " .. . each defendant intended to have sexual intercourse without her consent, not merely that he intended to have sexual intercourse with her but that he intended

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to have intercourse without her consent". (at p. 209) Lord Hailsham added the qualification, if an accused is reckless as to consent, that is equivalent, on ordinary principles, to an intent to do the prohibited act without consent. Lord Simon, though dissenting on the issue of whether a belief must be reasonably held, was succinct:

The actus reus is sexual intercourse with a woman who is not in fact consenting to such intercourse. The mens rea is knowledge that the woman is not consenting or recklessness as to whether she is consenting or not. (at p. 218)

In the view of Lord Edmund-Davies, also in dissent, it is incorrect to regard rape as involving no mental element save the intention to have intercourse; knowledge by the accused of the woman's unwillingness to have intercourse is essential to the crime. (at p. 225) (See also Lord Fraser of Tullybelton, at p. 237).

Following the Morgan decision, the Home Secretary commissioned an inquiry and the Report of the Advisory Group on the Law of Rape (the Heilbron Report) was soon published (1975). The mandate of the Group was to consider whether the Morgan decision necessitated immediate statutory reform. In the course of its report, which approved the principles elucidated in Morgan, the following is stated, at para. 23:

The mental element, which the prosecution must addi­tionally establish (i.e. to the actus reus) is an intention by the defendant to have sexual intercourse either know­ing that she does not consent, or recklessly not caring whether she consents or not.

Moreover, the Group agreed that a mistaken though genuine belief is inconsistent with, and negatives, the requisite mental element. Such a belief need not be reasonably held, although the reasonableness of it is a relevant consideration for the jury. It is no longer disputed that, in England, perception of the woman's consent is an aspect of the mental element in crimes of rape.

Turning to Canada and the intention requisite for a s. 143 offence, the most recent decision is

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Mazza v. The Queen[18], in which the appellant appealed his conviction in a joint trial with the co-accused Rizzuto. Mazza engaged in intercourse where no consent was given, though in circum­stances somewhat different to those under which his co-accused earlier committed similar acts. Mazza arrived after the woman's submission had been induced by the threats of his cohort, and claimed in defence that he was unaware that she was, in fact, withholding consent. Chief Justice Laskin, speaking for the Court, reviewed the facts and held Mazza had no valid complaint. The trial judge had not failed to isolate the question of Mazza's possible lack of awareness of non-consent, or of honest belief there was consent. The case goes no further in its discussion of mens rea and mistake of fact.

The law of rape was considered by this Court in Leary v. The Queen[19]. The appeal turned on the availability of intoxication as a defence to the charge. Mr. Justice Pigeon, although disagreeing with the contention that specific intent was required, cited the following passage from the speech of Lord Simon, in the course of his review of what had been said in Morgan (at p. 58):

This brings me to the fourth question, namely whether rape is a crime of basic or ulterior intent. Does it involve an intent going beyond the actus reus? Smith and Hogan (Criminal Law, 3rd Edn, 1973, p. 47) say No. I respectfully agree. The actus reus is sexual intercourse with a woman who is not in fact consenting to such intercourse. The mens rea is knowledge that the woman is not consenting or recklessness as to whether she is consenting or not. (Emphasis added.)

The dissenting judgment in Leary contained this definition of the mental element:

... the Crown must prove, beyond reasonable doubt, intercourse without consent, together with (a) an inten­tion to force intercourse notwithstanding absence of consent, or (b) a realization that the conduct may lead to non-consensual intercourse and a recklessness or indifference to that consequence ensuing. It will not do

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simply to say that because the accused committed the physical act and the woman did not consent, he must be taken to have intended to have intercourse without consent. (at p. 35)

Two decisions rendered in provincial courts of appeal bear comment. In R. v. Bresse, Vallières and Théberge[20], Myrand J.A., speaking for the majority of the Quebec Court of Appeal, accepted knowledge of lack of consent as a positive aspect of the crime of rape:

[TRANSLATION] In any matter of rape, two mental elements must be considered; the one relates to the victim, the other to the aggressor. With regard to the victim, it is the absence of consent to the sexual rela­tions; with regard to the aggressor, it is the desire to impose sexual relations upon the victim. The latter element assumes the knowledge by the accused of the lack of consent of the victim. (at pp. 81-2)

He concluded that where the attitude of the woman is equivocal as to consent, it cannot be said there is no evidence for a jury on the issue of sincere belief in consent.

In R. v. Plummer and Brown[21], the appellant Brown arrived after earlier acts of intercourse had been induced by threats and was alerted to the possibility that consent was not forthcoming, as the girl was crying when he entered the room. On appeal from his conviction, the Ontario Court of Appeal, without reference to, or review of, any of the case authorities, held:

There must be a direction to the jury, that if the Crown fails to establish beyond a reasonable doubt that the circumstances were such that Brown could not honestly believe her consent was voluntary, then he must be acquitted. (at p. 500)

It will thus be seen that the great weight of authority is in support of the view that the accused's perception of the woman's consent is an important aspect of any prosecution for the crime of rape. Counsel for the Crown in the instant appeal reviewed and compared s. 143 of the Code with other Part IV Code offences, to make the point that the subjective belief of an accused is no

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part of the case to be proved by the Crown. It was contended that, since reference to intention to proceed in the absence of consent is lacking in s. 143, the statutory wording prevails over case authorities which consider the mental element in terms of the common law definition. Section 148 of the Code was cited in comparison. This section specifies as an ingredient of the offence, knowledge or reason for belief that the female person is, by reason of her mental condition, incapable of giving a reasonable consent. Knowledge of the existence of a blood relationship is a constituent element of the crime of incest, spelled out in s. 150 of the Code.

One cannot assume, on the strength of these two sections, that there is no mens rea element relating to consent, for crimes of rape. Parliament does not consistently employ wording which indicates express levels of intention (such as knowingly, intentionally, wilfully) for all offences which undoubtedly import a mental element. Even within Part IV, there is no consistency in the wording of the offences. I do not think the determination of the mental element for rape turns, in any way, on a comparative analysis of the wording for Part IV offences.

I refer to the statement by Lord Reid in Sweet v. Parsley[22]:

... for it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word 'knowingly', is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. (at p. 350)

In summary, intention or recklessness must be proved in relation to all elements of the offence, including absence of consent. This simply extends to rape the same general order of intention as in other crimes.

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II

Mistake of Fact

Belief by an accused in a mistaken set of facts has not always afforded an answer to a criminal charge. By the early criminal law, the only real defence that could be raised was that an act had not been voluntary and, therefore, could not be imputed to the accused. Thus it was possible in some cases to excuse a man who had acted under a mistake, by the argument that his conduct was not truly voluntary (Russell on Crime, Vol. I (12th ed.), at p. 71). In the seventeenth century, Hale wrote: "But in some cases ignorantia facti doth excuse, for such an ignorance many times makes the act itself morally involuntary." (1 Pleas of the Crown 42)

The leading English cases on mistake of fact are, of course, R. v. Prince[23] and R. v. Tolson[24]. In the Prince decision (at p. 152), Brett J. cited from Blackstone's Commentaries:

Ignorance or mistake is another defect of will, when a man intending to do a lawful act does that which is unlawful. For here, the deed and the will, acting sepa­rately, there is not that conjunction between them which is necessary to form a criminal act .. .

Brett J. held that mistake, as a defence, applies whenever facts are present, in which an accused believes and has reasonable ground to believe, which if true, would render his act innocent and not a crime. The Tolson case, following Prince, considered the extent to which a mistaken, though honest and' reasonable, belief that the first spouse was dead could afford a defence to a charge of bigamy. The classic statement is that of Cave J.:

At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a good defence. (at p. 181)

An honest and reasonable mistake of fact is on the same footing as the absence of a reasoning

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faculty, as with infants, or impairment of the faculty, as in lunacy (Tolson, at p. 181). Culpability rests upon commission of the offence with knowledge of the facts and circumstances compris­ing the crime. If, according to an accused's belief concerning the facts, his act is criminal, then he intended the offence and can be punished. If, on the other hand, his act would be innocent, accord­ing to facts as he believed them to be, he does not have the criminal mind and ought not to be pun­ished for his act. (See E. R. Keedy, "Ignorance and Mistake in the Criminal Law", 22 Harvard L.R. 75, 82).

As stated by Mr. Justice Dixon, as he then was, in Thomas v. The King[25]:

States of volition are necessarily dependent upon states of fact, and a mistaken belief in the existence of circum­stances cannot be separated from the manifestation of the will which it prompts ... the nature of an act of volition may be of an entirely different description if it is based on mistake of fact. The state of facts assumed must often enter into the determination of the will. It would be strange if our criminal law did not contain this principle and treat it as fundamental. (at pp. 299-300)

Mistake is a defence, then, 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 an 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.

If I am correct that: (i) s. 143 of the Criminal Code imports a mens rea requirement, and (ii) the mens rea of rape includes intention, or recklessness as to non-consent of the complainant, a mistake that negatives intention or recklessness entitles the accused to an acquittal. Glanville Williams notes

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 (Criminal Law, The General Part, p. 173, para. 65):

It is impossible to assert that a crime requiring intention or recklessness can be committed although the accused laboured under a mistake negativing the requisite inten­tion or recklessness. Such an assertion carries its own refutation.

Howard (Criminal Law (3rd. ed.)) points out that rape is aimed at the protection of women from forcible subjection to non-marital sexual intercourse, but that the facts of life not infrequently impede the drawing of a clean line between consensual and non-consensual intercourse:

… it is easy for a man intent upon his own desires to mistake the intentions of a woman or girl who may herself be in two minds about what to do. Even if he makes no mistake it is not unknown for a woman afterwards either to take fright or for some other reason to regret what has happened and seek to justify herself retrospectively by accusing the man of rape. (at p. 149)

I do not think the defence of mistaken belief can be restricted to those situations in which the belief has been induced by information received from a third party. That was the situation in the Morgan case. In Morgan, the belief in consent was induced by information related by the complainant's hus­band, who spoke of his wife's sexual propensities. The foundation for the defence, incredible as it turned out to be, in view of the violence, was the misinformation of the husband. Had the defendants believed that information, and had the wife's overt conduct been relatively consistent with it, the defendants would have had a defence. That is the effect of the dicta of the House of Lords in the Morgan case.

In principle, the defence should avail when there is an honest belief in consent, or an absence of knowledge that consent has been withheld. Wheth­er the mistake is rooted in an accused's mistaken perception, or is based upon objective, but incor­rect, facts confided to him by another, should be of no consequence. The kind of mistaken fact pleaded by the Morgan defendants, however, is more likely to be believed than a bald assertion of mistaken belief during a face to face encounter. In any

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event, it is clear that the defence is available only where there is sufficient evidence presented by an accused, by his testimony or by the circumstances in which the act occurred, to found the plea.

III

Honest and Reasonable Mistake

The next question which must be broached is whether a defence of honest, though mistaken, belief in consent must be based on reasonable grounds. A majority of the House of Lords in Morgan answered the question in the negative, and that view was affirmed by the Heilbron Committee. There can be no doubt this answer is conso­nant with principle. As Professor Keedy has written (22 Harv. L. Rev. 75, at p. 88), an act is reasonable in law when it is such as a man of ordinary care would do under similar circum­stances; to require that the mistake be reasonable means that, if the accused is to have a defence, he must have acted up to the standard of an average man, whether the accused is himself such a man or not; this is the application of an outer standard to the individual; if the accused is to be punished because his mistake is one which an average man would not make, punishment will sometimes be inflicted when the criminal mind does not exist.

In other jurisdictions, there are divergent deci­sions and dicta on the question whether mistaken belief must be based on reasonable grounds to exculpate. In the affirmative are such bigamy cases as Tolson, supra; Thomas, supra; R. v. King[26] and R. v. Gould[27]. Non-bigamy cases are Prince, supra; Bank of New South Wales v. Piper[28], R. v. Warner[29] and Sweet v. Parsley, supra. In the majority of cases in which the courts view the mistake as a defence only if made on

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reasonable grounds, such as in Tolson, that view is not a necessary part of the ratio decidendi.

Among the cases in which mistaken belief was considered, and a test of reasonableness applied, are Flannery, supra, R. v. Bourke[30] and Sperotto and Salvietti, supra. Cases to the contrary are: Thorne v. Motor Trade Association[31], Wilson v. Inyang[32], R. v. Smith[33], R. v. Brown[34]. Virtually unanimous rejection of the added requirement of "reasonableness" is to be found in the scholarly writings: Glanville Williams (Criminal Law, The General Part, para. 70, at p. 201): "The idea that a mistake, to be a defence, must be reasonable, though lurking in some of the cases, is certainly not true as a general proposition"; Glanville Williams, Textbook of Criminal Law, at p. 100; Howard, supra, at pp. 153-4; Smith & Hogan, Criminal Law (4th ed.), at p. 182; Russell on Crime (12th ed), at p, 76; J. C. Smith (1975), Crim. L.R. 41; Morris and Turner, 2 U. of Queensland L.J. 247.

In Canada, the Tolson rule has already been rejected by this Court in favour of the honest belief standard. Unless this Court wishes to overrule Beaver v. The Queen[35], it is difficult to see how the minority in Morgan can decide this appeal.

In R. v. Rees[36], the issue was whether there is mens rea for the offence of knowingly or wilfully contributing to juvenile delinquency. Cartwright J. set out the Tolson test and then held as follows:

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The first of the statements of Stephen J., quoted above should now be read in the light of the judgment of Lord Goddard C.J., concurred in by Lynskey and Devlin J.J. in Wilson v. Inyang which, in my opinion, rightly decides that the essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining such essential question. (at p. 651)

One year later, in Beaver v. The Queen, supra, a narcotics case, the opinion of Mr. Justice Cart­wright was accepted by a majority of the Court. He adopted the paragraph quoted above from Rees. Beaver has since been regarded as an authoritative contribution to the law as to mental element, and mistaken belief, in true crimes.

It is not clear how one can properly relate reasonableness (an element in offences of negligence) to rape (a "true crime" and not an offence of negligence). To do so, one must, I think take the view that the mens rea goes only to the physical act of intercourse and not to non-consent, and acquittal comes only if the mistake is reasonable. This, upon the authorities, is not a correct view, the intent in rape being not merely to have intercourse, but to have it with a non-consenting woman. If the jury finds that mistake, whether reasonable or unreasonable, there should be no conviction. If, upon the entire record, there is evidence of mistake to cast a reasonable doubt upon the existence of a criminal mind, then the prosecution has failed to make its case. In an article by Professor Colin Howard (4 U. of Queensland L.J. 45), the following is offered:

To crimes of mens rea, or elements of a crime which requires mens rea, mistake of fact simpliciter is a defence; to crimes of negligence, or elements of an offence which requires only negligence, mistake of fact is a defence only if the mistake was in all the circum­stances a reasonable one to make. (at p. 47)

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The same analysis is expressed by Glanville Wil­liams, supra, para. 71, at p. 202.

In Director of Public Prosecutions v. Morgan, four Law Lords agreed that having accepted the mental element of knowledge as to consent, it is inconsistent to attach a standard of reasonableness to a defence of honest belief. As Lord Hailsham pointed out, the following two propositions are totally irreconcilable:

(i) each defendant must have intended to have sexual intercourse without her consent, not merely that he intended to have intercourse but that he intended to have intercourse without her consent;

(ii) it is necessary for any belief in the woman's consent to be a "reasonable belief" before the defendant is entitled to be acquitted.

The difference between the majority and minori­ty decisions in Morgan turned upon the way in which each Law Lord perceived the Tolson prece­dent, as being a wide-ranging and well-established principle, or as expressing a narrow rule limited in effect to bigamy and the facts at hand.

Lambert J.A., in his dissenting judgment in the instant case reasoned, on his reading of Leary and Morgan, that a defence of honest belief in consent must be based on reasonable grounds. In his view, two law Lords in Morgan following Tolson, clearly required an honest belief to be held on reasonable grounds (Lord Simon and Lord Edmund-Davies). Two others, Lord Fraser and Lord Hailsham, invoked general principles to conclude that an honest belief in consent need not be reasonably held. The decision of the fifth judge, Lord Cross, turned on a distinction drawn between statutory and common law offences. Bigamy, the offence in question in Tolson, was a statutory offence. Rape is not. Therefore, the Tolson requirement that the mistake be reasonable does not apply to rape, a crime defined by common law. Were rape to be defined by statute, the defence would be available only if supported by reasonable grounds. Lambert J.A. held that if one adapted the decision of Lord Cross to s. 143 of the Code, the tables would be

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turned, and a majority of the Lords would, for purposes of the Criminal Code, endorse the honest and reasonable test. If the distinction Lord Cross thought might be possible between statutory and common law offences would have the effect of giving a defence of unreasonable mistake to a person accused of a crime which, in express terms, imported mens rea, but would limit the defence to one of reasonable mistake to a person accused of a crime which imported mens rea only by implication, the justification for the distinction is not apparent. I am unable to see why the defence should be so limited. Rape is not a crime of strict or absolute liability. With respect, there is no compelling reason for extending to rape the misap­prehension having its genesis in Tolson, and now endemic in English law, that makes bigamy a crime of negligence and would have a like effect if applied to statutory rape.

Mr. Justice Lambert recognized that while his conclusion was directed by precedent rather than logic, he also found it to be supported, in relation to rape, by policy and practical sense:

Why should a woman who is sexually violated by (such) a man have to defend herself by screams or blows in order to indicate her lack of consent, or have to consent through fear, for a charge of rape to be sustained? Surely a firm oral protest, sufficient to deny any reasonable grounds for belief in consent, should be a sufficient foundation in these circumstances for a charge of rape.

I am not unaware of the policy considerations advanced in support of the view that if mistake is to afford a defence to a charge of rape, it should, at the very least, be one a reasonable man might make in the circumstances. There is justifiable concern over the position of the woman who alleges she has been subjected to a non-consensual

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sexual act; fear is expressed that subjective orthodoxy should not enable her alleged assailant to escape accountability by advancing some cock-and-bull story. The usual response of persons accused of rape is—"she consented". Are such persons now to be acquitted, simply by saying: "even if she did not consent, I believed she con­sented"? The concern is legitimate and real. It must, however, be placed in the balance with other relevant considerations. First, cases in which mistake can be advanced in answer to a charge of rape must be few in number. People do not normally commit rape per incuriam. An evidential case must exist to support the plea. Second, if the woman in her own mind withholds consent, but her conduct and other circumstances lend credence to belief on the part of the accused that she was consenting, it may be that it is unjust to convict. I do not think it will do to say that in those circum­stances she, in fact, consented. In fact, she did not, and it would be open to a jury to so find. Third, it is unfair to the jury, and to the accused, to speak in terms of two beliefs, one entertained by the accused, the other by a reasonable man, and to ask the jury to ignore an actual belief in favour of an attributed belief. The mind with which the jury is concerned is that of the accused. By importing a standard external to the accused, there is created an incompatible mix of subjective and objective factors. If an honest lack of knowledge is shown, then the subjective element of the offence is not proved. The following passage from the Heilbron Report is, however, apposite:

66. Morgan's case did not decide, as some critics seem to have thought, that an accused person was entitled to be acquitted, however ridiculous his story might be, nor did it decide that the reasonableness or unreasonableness of his belief was irrelevant. Furthermore it is a mistaken assumption that a man is entitled to be acquitted simply because he asserts this belief, without more.

Perpetuation of fictions does little for the jury system or the integrity of criminal justice. The ongoing debate in the courts and learned journals as to whether mistake must be reasonable is conceptually important in the orderly development of

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the criminal law, but in my view, practically unim­portant because the accused's statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although "reasonable grounds" is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused's belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.

Canadian juries, in my experience, display a high degree of common sense, and an uncanny ability to distinguish between the genuine and the specious.

The words of Dixon J. bear repeating:

... a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code. (Thomas v. The King, supra, at p. 309)

In Textbook of Criminal Law, at p. 102, Professor Glanville Williams states the view, with which I am in agreement, that it is proper for the trial judge to tell the jury "that if they think the alleged belief was unreasonable, that may be one factor leading them to conclude that it was not really held; but they must look at the facts as a whole". It will be a rare day when a jury is satisfied as to the existence of an unreasonable belief. If the claim of mistake does not raise a reasonable doubt as to guilt, and all other elements of the crime have been proved, then the trier of fact will not give effect to the defence. But, if there is any evidence that there was such an honest belief, regardless of whether it is reasonable, the jury must be entrusted with the task of assessing the credibility of the plea.

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To apply the reasonable standard in this appeal, the Court, in my view, would have to: (a) accept the minority decision in Morgan; (b) overrule Beaver or find a means of distinguishing the offence of rape; and (c) defy accepted and sound principles of criminal law.

IV

The Plea and the Evidence

I come now to what is perhaps the most difficult part of this case, namely, whether there was an evidential base sufficient to require the trial judge to place before the jury the defence of mistaken belief in consent. The trial judge and two judges of the Court of Appeal concluded no such base existed. Chief Justice Farris, in dismissing the appeal, was strongly influenced by the fact that "at no time did the appellant suggest in his evidence that while there was resistance on the part of the complainant nonetheless he honestly believed that she was in fact consenting. He did testify that there was resistance after acts of bondage but from then on there was no intercourse". With respect, it is not necessary that an accused specifically plead mistake. The issue to which an accused's state of mind is relevant is mens rea and that issue is always before the jury, the onus being on the prosecution. Nor is a defence of honest belief necessarily inconsistent with a defence of consent. In raising the latter, an accused is challenging the factual aspect of the offence. Did the complainant or did she not consent? If she did, the actus reus was not committed. The defence of honest belief is different in nature, for it rests upon an accused's subjective perception of that factual situation.

In relying upon consent as a defence, the appellant invites the trier of fact to find in all the circumstances that she did consent (i.e. to reject her testimony). In relying on honest belief, he is suggesting that even if she did not consent, he nonetheless proceeded in the mistaken but honest belief that she had been willing. Though the offence was committed, he is not responsible, for he lacked the requisite intention. In most cases, it

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is difficult to imagine that consent and honest belief can offer alternative defences. If there is no consent in fact, rare is the case in which a man will, nonetheless, believe that it was given. This, however, may be one such case.

If there was "some" evidence to "convey a sense of reality" to a defence of mistake as to consent, then the jury ought to have been instructed to consider that plea. Kelsey v. The Queen[37], at p. 226. The Crown argues that the question of suffi­ciency of evidence is not one of law and, therefore, not properly before the Court. As stated in Dunlop and Sylvester v. The Queen[38], at p. 890:

The question of whether there is sufficient evidence to go to the jury, i.e. any evidence upon which a jury, properly instructed, could find the appellants guilty . . is a question of law, which can found an appeal to this Court under s. 618(1)(a).

The evidence of the complainant is that of no consent, at any time, to any act of intercourse with the appellant. Her version of the incident is inter­spersed with assertions of screaming, fighting, rea­soning and attempted escape. But even on the complainant's version there is much common ground with the appellant's version which supports his defence of belief in consent. Moreover, the appellant testified. There was ample evidence in his testimony which points to circumstances, from which arise an inference of willingness or consent, at least for those activities which preceded the so-called "bondage". It is not proper, in my view, to look at the two pieces of testimony that are in conflict, to conclude that the only issue is one of credibility and that a blurred perception, on the part of the appellant, is inconceivable when cast alongside the complainant's evidence. That is a matter for the jury to decide. The appellant tells of a convivial afternoon (as to that there is no dispute), minimal resistance through episodes of

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intercourse and, finally, hysteria with "bondage". If his version were accepted, the defence is two-fold: (a) actual consent; and (b) belief in consent. Though the jury found, as a fact, there was no consent, the further finding that the appellant may, nonetheless, have been mistaken was not left open.

Leaving aside the possibility of post-bondage intercourse, the jury could have reached any one of three alternative conclusions: (1) the appellant was telling the truth and the complainant did consent; or (2) he was not telling the truth, she did not consent and he was aware of that fact or reckless to it; or (3) though he did not plead mistake, he believed she was consenting, notwithstanding token resistance. His defence of consent is rejected and that of honest belief accepted. I think there was sufficient evidence to put that third alternative to the jury.

Because the case turns on evidential matters, detailed reference thereto is unavoidable. The two met at lunch to discuss the sale of the appellant's residence. The complainant was his agent in the matter. Throughout the afternoon, until approximately 4:00 p.m., a considerable amount of alcohol was imbibed by both parties and by friends who joined the table. At one point, the complainant left to ensure the time limit for parking her car had not expired and was escorted by the appellant in this task. The two stopped to visit a friend of the appellant who owned a dress shop. The appellant told of casual affectionate gestures he had ini­tiated. His evidence was supported by the owner of the dress shop—"it look to me like she hand it to him on a platter"—and by the witness Oswald—" ... it was quite obvious to me that he was court­ing her ... on several occasions I noticed he kissed her hand". The appellant and the complainant returned to the restaurant briefly and then departed for appellant's home, with the appellant at the wheel of the complainant's car, where it was intended they would complete the business discussion.

She testified that, upon arrival at his house, the appellant closed the door and pushed her down the

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hall. She was resisting him, in the sense of trying to reason with him asking him why he was pushing her. He said he was going to break her. In the bedroom, while he took her blouse off, she rea­soned with him. When he succeeded in removing it, she knew he was going to rape her. She tried to escape, but he threw her down on the bed and she became totally hysterical. She screamed at the top of her lungs. He gestured with his upraised arm, that she was to undo his cuff links. When she refused, he threatened her with his fist and she began to scream. He removed her underclothing and skirt in one tug. When he suggested and commenced acts of oral gratification, she refused and he did not continue. This is significant. It is an area of common ground. If the appellant wanted oral sex, but discontinued upon perceiving her resistance, why did he proceed to acts of intercourse if her resistance was also made known in that regard? This reflects not only on her credibility, but more importantly, on his perception of that which she was resisting and that to which she was consenting. Then, she said, he raped her. After the first act, there was a conversational session. She pleaded with him to let her go. She tried to escape and, on each occasion, he would catch her at the door, push her back down, and rape her again. On three occasions she tried to escape and, on each, he raped her. After she had been there about an hour, he became angry and threw her off the end of the bed. He took her right hand, wrenched it hard and tightly, and tied both hands tightly behind her back with a bathrobe cord. He threw her face down on the bed and raped her from behind. She was trying to talk and reason with him. At some point, he gagged her with a bow tie. She was tied for an hour before being gagged and it was an hour before she got away. When he left the room to get cigarettes, she ran out the front door and went down the lane screaming.

The tone of the appellant's evidence differs at the outset, with his description of a pleasant afternoon and affectionate gestures. On arrival at his house, he repaired to the bathroom. When he returned, they sat on the chesterfield and he kissed

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her. She took off her necklace and put it on the coffee table. They kissed and when she expressed concern about her blouse, he led her to the bedroom. As he took off her blouse, she asked, "George, what are you doing?" He hung up her blouse in the closet. She did not resist removal of the blouse. She then lifted herself while he removed her skirt, folding and placing it at the foot of the bed. She did not resist. She "sort of refused" to undo his cuff links. She lifted her arms so that he could remove her slip. He removed other items of her clothing and she asked, "What are you doing?", or "Why are you doing this?" He took off his own clothes, put his tie on the tie rack, and piled his underwear and socks on the floor. He suggested and began to perform acts of oral sex. She put up her hands and stopped him. When she resisted he stopped, for he perceived a definite reluctance on her part. He suggested they have intercourse. That act proceeded and proved frus­trating to both parties. He left the room and returned. She also made a trip to the bathroom. The two talked for some time. She said she "really had to go", but made no attempt to go toward the door. A second act of intercourse was carried out, and then she agreed to a third one in a different position, from behind. Neither party was satisfied and so he suggested something different. He tied a bow tie loosely around her neck, and she asked: What was he doing? Why was he doing it? She did not protest or fight. He told her he was symbolically putting her into "bondage". After the bow tie was in place, he tied the sash around her wrists. About then, while his attention was diverted, she pitched forward off the bed, and, when he lifted her back onto it, her demeanour completely changed. All along, she had only "mildly protested" when he had done anything and he thought she "might have enjoyed it". Now she claimed he was trying to break her. She was screaming hysterically. He was dumbfounded. He backed off and went to get a cigarette. When he returned, she had gone. He did not have intercourse with her after tying her hands. She had not resisted up until that time, except to the acts of oral sex. It is not disputed by the appellant that, with "bondage"

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and the fall from the bed, the complainant became highly distraught and hysterical.

Two excerpts from the testimony of the appellant bear on the point under consideration:

Q. ... when you were asked by the police later on "did she object to going to bed" and you said "not violently" .. .

A. What I meant by that was there was no violence, there was some token submission, there was oral resistance, there was oral resistance.

Q. By oral resistance she said she did not want to make love to you?

A. No, she did not, when I was taking off her clothes she was saying things like, "George what are you doing"?

Q. I put it to you she was hysterical and she was screaming and she was crying.

A. She was hysterical and she was screaming and she was crying, correct.

Q. And I put it to you that that was prior to the time at which you tied her.

A. That was not.

The evidence of the appellant's conversation with the police officer is of importance:

Question: Who tied her hands?

Answer: I did.

Question: Why?

Answer: Part of the act of intercourse.

Question: Did she mind? Answer: She didn't seem to.

Question: When did she start minding?

Answer: After she started talking about her childhood, her mother, her father, and then I excused myself and got up.

Question: Did you have intercourse?

Answer: What do you mean, penetration? Question: Yes.

Answer: Penetration, yes; intercourse, no.

Question: Where did you go when you got up?

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Answer: To get a cigarette. She seemed to have a lot of trouble and I didn't want to screw her up any more than she was.

Question: Did she object to going to bed?

Answer: Not violently.

Question: You mean token resistance?

Answer: Yes. No I really couldn't say, she really didn't resist very much.

There is circumstantial evidence supportive of a plea of belief in consent: (1) Her necklace and car keys were found in the living room. (2) She confirmed his testimony that her blouse was neatly hung in the clothes closet. (3) Other items of folded clothing were found at the foot of the bed. (4) None of her clothes were damaged in the slightest way. (5) She was in the house for a number of hours. (6) By her version, when she entered the house the appellant said he was going to break her. She made no attempt to leave. (7) She did not leave while he undressed. (8) There was no evidence of struggle, and (9) She suffered no physical injuries, aside from three scratches.

The Heilbron Report contains the following observations which seem pertinent to the case at bar. The crime of rape involves an act—sexual intercourse—which is not, in itself, either criminal or unlawful, and can, indeed, be both desirable and pleasurable; whether it is criminal depends on complex considerations, since the mental states of both parties and the influence of each upon the other, as well as their physical interaction, have to be considered and are sometimes difficult to inter­pret—all the more so, since normally the act takes place in private; there can be many ambiguous situations in sexual relationships; hence, however precisely the law may be stated, it cannot always adequately resolve these problems; in the first place, there may well be circumstances where each party interprets the situation differently, and it may be quite impossible to determine with any confidence which interpretation is right.

Toy J. gave a full, fair and accurate summary of the testimony by the complainant and appellant. There can be no criticism of the instructions in this respect. He did not, however, charge the jury on

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the defence of mistaken belief, as he earlier ruled there was not "in the evidence any sufficient basis of fact to leave the defence of mistake of fact to this jury".

In my view, with respect, the judge erred in failing to instruct the jury (a) that as to pre-bond­age intercourse, the issues were consent and belief in consent; and (b) that as to post-bondage intercourse, the issue was whether an act of intercourse occurred or not. If the answer to (b) was negative, a conviction could not be founded upon the post-bondage period. If the answer was in the affirma­tive, a conviction would almost, of necessity, follow, because there was admittedly no consent or belief in consent after the "bondage".

That the case gave the jury difficulty is clear from the fact that the charge was delivered about noon, on a Friday, and the verdict was not ren­dered until about 5:00 p.m. on Saturday.

I am mindful of the comment of Mr. Justice Pigeon in Leary, that consideration should be given to the plight of a complainant, who should not be subjected to the humiliation of having to testify again, unless justice makes it imperative. The possibility of a mistaken belief in consent in the pre-bondage phase was an issue that should have been placed before the jury: the judge's failure to do so makes it imperative, in my opinion, in the interests of justice, that there be a new trial. It was open to the jury to find only token resistance prior to the "bondage" incident, which the appellant may not have perceived as a withholding of consent. The accused was convicted of that which, perhaps, he did not intend to do had he known of no consent. It does not follow that, by simply disbelieving the appellant on consent, in fact, the jury thereby found that there was no belief in consent, and that the appellant could not reasonably have believed in consent.

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I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal and direct a new trial.

Appeal dismissed, DIcKSON and EsTEY JJ. dissenting.

Solicitors for the appellant: Russell & DuMou­lin, Vancouver.

Solicitors for the respondent: DuMoulin, Black & Co., Vancouver.