What does “no” mean? The state of the law on consent in sexual assault and the mistaken belief in communicated consent

Par Benjamin Wilner, avocat

What is the state of the law when an accused argues they mistakenly believed the complainant in a sexual assault case was consenting to the sexual activity? This question has been addressed many times by the Supreme Court of Canada in the last three years, and the Quebec Court of Appeal has provided a relevant summary in Ofter v. R., 2022 QCCA 439. Though the Court of Appeal made a point of saying the case in question was highly fact-specific, it nevertheless provides an important review of what the Crown must prove in a sexual assault cast, and how accused persons can best defend themselves in law.

Context

The accused was found guilty of sexual assault. The accused and the complainant had briefly been coworkers before she contacted him on Facebook. They both expressed a desire to meet one another, and the accused understood that it was for the purpose of sex. When they met, they eventually arrived at his home, and began kissing and fondling each other. The accused then tried to escalate the encounter multiple times in different ways, but the complainant refused each time. Despite these various refusals, she eventually performed oral sex on him — the act forming the basis of the accusations.

The trial judge found that the accused had not taken reasonable steps to ascertain consent from the complainant and the Court of Appeal agreed, specifically finding that the accused had forced the complainant.

Decision

The accused appealed this decision, arguing that the verdict was unreasonable and that the trial judge rejected his defence (that he honestly but mistakenly believed the complainant had consented to performing oral sex on him) without sufficient reason and had misapprehended the evidence.

The Court of Appeal found that the verdict was not unreasonable, as there was enough evidence to support a finding of guilt.

The Court then went on to analyze whether the accused’s testimony had raised a reasonable doubt:

[19] Additionally, I do not believe that his testimony raised a reasonable doubt. The complainant’s undisputed reluctance to engage in any sexual activity beyond kissing and some fondling was clear from the appellant’s testimony. Taking the appellant’s testimony at face value, given his acknowledgement of the numerous indicia of the lack of the complainant’s consent to more intrusive sexual activity, he is guilty of not having taken reasonable steps to ascertain her consent.

[20] “Submission” definitely does not equate to “consent”. The sudden and radical change in the complainant’s mindset towards sexual activities at the time required a validation of her true consent.

The Court of Appeal concluded that it was obvious the complainant had no desire to engage in any sexual activity beyond kissing and fondling, and the accused did not take these clear repudiations as a sign that he should question whether she wanted anything more.

The accused had argued at trial that the complainant had said no to certain acts but then performed oral sex on him (seemingly willingly), thereby allowing him to argue that he honestly but mistakenly believed she was consenting to that act.

The trial judge had said the following on this question: “it would be irrational to conclude that the complainant would have abruptly moved away from her more reserved demeanour to freely and willingly [perform oral sex on] the accused when prompted to do so”. The Court of Appeal found no error in this conclusion.

The Court of Appeal provided the following useful summary of the law on consent and the defence of honest but mistaken belief in communicated consent, as it presently exists in Canada criminal law:

[29] Again, consent cannot be presumed or implied: R. v. Ewanchuk, [1999] 1 S.C.R. 330, para. 103; R. v. Barton, [2019] 2 S.C.R. 579, para. 98. Consent must be the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” that may be communicated by words or conduct and may withdrawn at any time: Barton, paras. 88 and 91; R. v. A.E., 2022 SCC 4.

[30] The Criminal Code specifically limits the availability of the defence of honest but mistaken belief in communicated consent. Reasonable steps to ascertain consent must be taken. In Barton, it was said that “[s]ection 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time”: R. v. Barton, [2019] 2 S.C.R. 579, paras. 104 and 122; R. v. A.E., 2022 SCC 4. The purpose of this requirement is to reject “the outmoded idea that women can be taken to be consenting unless they

say ‘no’ ”: R. v. Barton, para. 105.

[31] Whether the reasonable steps to ascertain consent were taken is highly fact-specific: R. v. Barton, [2019] 2 S.C.R. 579, para. 106. Although the Supreme Court was reluctant to draw an exhaustive list of what constitutes reasonable steps to ascertain consent, it did say that “an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent” and that “the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent”: R. v. Barton, paras. 107–108.

[…]

[33] The evidence—either as a whole or looking at the appellant’s own testimony alone—supports the judge’s conclusion. It is clear from the appellant’s testimony that he comforted himself in his reading of the complainant’s state of mind. Since, for him, the encounter was for the purpose of sexual intercourse and nothing else, it must have been the same for the complainant. He had set his mind on that purpose and never looked back. In his view, because she had agreed to engage in kissing, he was on his way to engaging in more involved sexual activity, despite the many behavioural and verbal objections expressed along the way by the complainant.

For all of these reasons, the Court of Appeal dismissed the appeal. The Court of Appeal even specifically confirmed that the trial judge had made no error in finding that the accused had forced the complainant.

The full text of the decision can be found here.