WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20220113 Docket: C68189 Hourigan, Paciocco, and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

H.W. Respondent

Counsel: Jamie Klukach and Holly Loubert, for the appellant James Lockyer and Jessica Zita, for the respondent

Heard: June 21, 2021 by video conference

On appeal from the acquittal entered by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, on February 18, 2020.

Zarnett J.A.:

Overview

[1] This Crown appeal raises the question of how a jury should be instructed on the mens rea requirement for sexual assault when the defence of honest but mistaken belief in communicated consent is not available to the accused. That question is part of a broader one concerning the extent to which the knowledge element of the offence — that the accused knew of, or was wilfully blind to or reckless as to, the absence of the complainant’s consent to the sexual activity — is to be considered when the accused has no defence of honest but mistaken belief in communicated consent.

[2] It was not in dispute at trial that the complainant and respondent had engaged in sexual activity. The complainant testified that she did not consent; the respondent’s position was that the complainant did consent and that her evidence that she did not consent was not credible. He gave evidence that included why he believed, from their interaction, that she was consenting.

[3] Prior to instructing the jury, the trial judge conducted a pre-charge conference. At it, the parties agreed, and the trial judge accepted, that if the jury was satisfied that the complainant had not consented to the sexual activity, there was no air of reality to a defence of honest but mistaken belief in communicated consent. Accordingly, the defence would not be left with the jury.

[4] The trial judge indicated that he proposed to instruct the jury that to convict, they had to be satisfied beyond a reasonable doubt on four elements: (a) that there had been intentional touching, (b) of a sexual nature, (c) without the complainant’s consent, and (d) that the respondent knew of, or was wilfully blind or reckless as to, the absence of the complainant’s consent (the “knowledge element”).

[5] The Crown objected to the fourth element – the knowledge element – being left with the jury, on the basis that if the jury was satisfied on the first three elements, there was nothing further for the jury to consider. As the defence of honest but mistaken belief in communicated consent was not available to the respondent, he could not have had a non-culpable mental state and the knowledge element should have been treated as satisfied.

[6] The trial judge rejected the Crown’s position. He instructed the jury that they had to be satisfied beyond a reasonable doubt on each of the four elements. He provided summaries of evidence relevant to the first three elements, including the respondent’s evidence of his perception of the complainant’s conduct and why he viewed that as her consent. On the knowledge element, he told the jury to consider all of the evidence, including the evidence he had summarized on the other elements.

[7] On appeal, the Crown argues that it was an error to leave the knowledge element with the jury at all, or, alternatively, in the manner that it was left.

[8] First, the Crown submits that the knowledge element of the offence is co-extensive with the defence of honest but mistaken belief in communicated consent, and that if the defence is not available to the accused, there is no room for reasonable doubt about the accused’s knowledge of the complainant’s non-consent. The Crown argues that when there is no air of reality to a defence of honest but mistaken belief in communicated consent, “the jury should be instructed that guilt is established if they are satisfied beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature, without her consent.”

[9] Second, and in the alternative, the Crown argues that even if the knowledge element may be left with the jury when the defence of honest but mistaken belief in communicated consent is unavailable to the accused, that unavailability will in most cases be practically conclusive on the knowledge element, and that it was in this case. The jury should have been told this. Inviting the jury to consider all of the evidence to determine whether there was knowledge of non-consent without further guidance as to what they could and could not consider on this issue risked the jury considering irrelevant matters and engaging in impermissible forms of reasoning.

[10] The respondent submits that the knowledge element of the mens rea requirement for sexual assault is part of the Crown’s burden as a matter of law, and that this burden is not contingent on the presence of the defence of honest but mistaken belief in communicated consent. He argues that the trial judge was bound to charge on the need for the Crown to prove the knowledge element as part of the mens rea. He also argues that if there was an error, it could not have affected the verdict.

[11] I agree with the respondent that it was not an error of law to instruct the jury that the charge of sexual assault required that the Crown prove that the respondent knew of, or was wilfully blind or reckless as to, the complainant’s non-consent, even where the defence of honest but mistaken belief in communicated consent was unavailable to the respondent. In my view, the argument that the unavailability of the defence equates with proof by the Crown of the knowledge element must be rejected in light of R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 and R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. There are important reasons of principle to legally distinguish the unavailability of a defence from proof of the Crown’s case even in situations where there is little practical difference between them. The Supreme Court has, since Morrison, repeated that proving the knowledge element is part of the Crown’s burden in a charge of sexual assault.

[12] But I agree with the Crown that in the circumstances, the trial judge’s instruction to the jury had to provide guidance as to what the jury could and could not properly consider on the knowledge element of the offence. The jury instruction had to ensure that the respondent was not effectively given the benefit of a defence that was not available to him.

[13] The instruction in this case did not do so. It did not instruct the jury that the respondent’s evidence of a mistaken perception or belief that the complainant had consented was not a defence and should not be considered. Instead, it directed the jury to consider that very evidence. Moreover, it failed to guide the jury as to how to approach the knowledge element issue on the evidence they could consider.

[14] The lack of a proper instruction may reasonably have affected the verdict. I would allow the appeal, set aside the acquittal, and direct a new trial.

The Circumstances of the Sexual Activity

[15] The complainant and the respondent were both guests at a wedding and at the reception that followed it. They had not met before the wedding. The respondent testified that he had approximately nine or ten alcoholic drinks over the course of that afternoon and evening.

[16] The complainant testified that she had no interaction with the respondent at the wedding or reception until, toward the end of the evening, she was waiting in a hallway to use one of the individual bathrooms. The respondent, who was in one of those bathrooms, opened the door and pulled her in, which surprised and confused her. She introduced herself, but he did not respond or answer her when she asked who he was. He proceeded to penetrate her orally, vaginally, and anally with his penis. She described herself as being in a state of shock, confusion, and disassociation, unable to process what was happening or understand how such a violent act could take place at a family wedding. She asked him a series of questions concerning who he was, what was going on, and how she got there. He did not answer. She also asked whether they were related, whether he was married, and whether he was related to the bride. He said that he was not married, they were not related, and that he was related to the bride. When he was finished anally penetrating her, he left the bathroom without saying anything further to her.

[17] The respondent testified that he met the complainant briefly at the wedding ceremony, but they did not engage in conversation. Around midnight, he had a 15-minute conversation with her near the washrooms that was neither romantic nor sexual. When he went to use one of the bathrooms, the complainant followed him, cut in front of him, and backed into the bathroom, looking at him and smiling. They began to kiss; she dropped to her knees and he undid his pants. She performed oral sex on him. When he lost interest in oral sex and stepped back, she stood up, turned around, and looked back at him smiling. He pulled up her dress, pulled down her underwear, and penetrated her vagina with his penis. After vaginal intercourse, he stopped and left the bathroom without saying anything to the complainant.

[18] The respondent explained that he took the complainant’s initial eye contact and smile as an invitation to join her in the bathroom, and believed, after they had oral sex and she stood up, turned around, and looked at him smiling, that this was an invitation to have sexual intercourse. The respondent assumed that the complainant consented to the sexual activity based on her eye contact and smiles. He agreed that at no point did the complainant verbally communicate consent. The only conversation that occurred inside the bathroom, according to the respondent, was that she twice asked if they were related, to which he replied “no.”

The Jury Charge, the Jury’s Question, and the Acquittal

[19] At a pre-charge conference, the defence and Crown agreed that there was no air of reality to a defence of honest but mistaken belief in communicated consent. They disagreed as to whether the “fourth element of sexual assault” – whether the accused knew that the complainant did not consent – should be put to the jury. The Crown’s position was that the jury should not be directed that the Crown had to prove beyond a reasonable doubt that the respondent knew the complainant was not consenting.

[20] The trial judge did not accept the Crown’s position, based on his reading of recent Supreme Court of Canada jurisprudence, including R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. He instructed the jury as follows:

For you to find [the respondent] guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

a. That [the respondent] intentionally touched [the complainant];

b. That the touching took place in circumstances of a sexual nature;

c. That [the complainant] did not consent to the sexual activity with [the respondent] in question; and

d. That [the respondent] knew that [the complainant] did not consent to that sexual activity.

[21] On the first two elements (elements (a) and (b) above) – whether intentional sexual touching took place – the trial judge reminded the jury that both the complainant and the respondent testified that there was contact of a sexual nature between them. He told the jury that although there were differences in their testimony as to what sexual touching occurred (for example, the complainant described anal sex and the respondent denied it), each type of sexual touching they described was capable of supporting these two elements of the charge. He told the jury that it was for them to decide which of the incidents of sexual touching had occurred, as all of the essential elements of the offence had to be considered for each incident they found to have in fact occurred.

[22] The trial judge then summarized the evidence relating to each alleged incident of sexual touching. While doing so, the trial judge made reference to the respondent’s evidence that the complainant got down on her knees “in a gesture that he understood to be an invitation to undo his pants”, that he “interpreted” her standing, turning, and smiling at him as an invitation to have sex with her, and that he had “no doubt” that she wanted him to engage in sex with her.

[23] On the third element (element (c) above – whether the complainant consented to the sexual activity with the respondent), the trial judge set out the definition of consent as the voluntary agreement of the complainant to engage in the particular sexual activity. He instructed the jury that a complainant is not obliged to express lack of consent by words or conduct, and that silence or lack of resistance did not constitute consent. He cautioned the jury about falling prey to common stereotypes and myths concerning sexual assault and sexual assault victims.

[24] The trial judge told the jury that when dealing with this third element, they were to be concerned solely with the complainant’s subjective state of mind – whether she in fact consented to the sexual activity in question. He added that the respondent’s “knowledge and appreciation of that question will be considered under the next essential element [i.e. the knowledge element] below.”

[25] He then provided a review of the evidence of the respondent and the complainant as to what had occurred, adding the observation that credibility was central to the issue of whether the complainant consented. While providing that review, he referred to the respondent’s evidence that “she subsequently stood up, placed her hands upon the counter and turned around to look at him and smile. He inferred from these gestures and the fact that she had initiated oral sex a moment earlier that she was inviting him to have vaginal sex with her and consenting to his doing so.”

[26] With respect to the knowledge element (element (d) above – whether the respondent knew that the complainant did not consent), the trial judge instructed the jury that if they were considering that element, it was because they were satisfied that the prior elements of the charge had been established beyond a reasonable doubt. He told the jury:

This last element requires you to consider [the respondent’s] state of mind in relation to the sexual activity in question. Crown counsel must prove beyond a reasonable doubt that [the respondent] was aware that [the complainant] did not consent to the sexual activity in question when he touched her.

To prove that [the respondent] was aware of [the complainant’s] lack of consent, the Crown must prove one of the following:

a. That [the respondent] knew that [the complainant] did not consent to the activity in question; or

b. That [the respondent] knew that there was a risk that [the complainant] did not consent to the sexual activity in question and [the respondent] proceeded in the face of that risk; or

c. That [the respondent] was aware of indications that [the complainant] did not consent to the sexual activity in question, but deliberately chose to ignore them because he did not want to know the truth.

[27] The trial judge did not provide a separate summary of the evidence regarding the knowledge element. He told the jury that they must review all of the evidence, including the evidence he had previously summarized, “to answer the question of [the respondent’s] state of mind at the time that he engaged in the sexual activity with [the complainant].” He invited the jury to “consider all of the evidence concerning the words exchanged between the [complainant and respondent] and their actions immediately prior to, during and immediately after the incident of sexual touching.” He told the jury that the same evidence that he had previously summarized “is relevant to your review of this last essential element.” He concluded:

If you have a reasonable doubt about whether [the respondent] knew that [the complainant] did not consent to the sexual activity in question, then you must find [the respondent] not guilty of the crime of sexual assault as charged in the indictment.

If you are satisfied that the Crown has proved beyond a reasonable doubt that [the respondent] knew that [the complainant] was not consenting to the sexual activity in question, you must find [the respondent] guilty of the crime of sexual assault as charged in the indictment.

[28] After some deliberation, the jury returned with a question: “Can a person be so intoxicated that they cannot know of a risk of non-consent or [i]f we believe that a person is drunk enough to not consider the risk of non-consent would we then be required to not convict or acquit the charges”?

[29] The trial judge provided the jury with the following response: “In answer to your question about consent, drunkenness is not a defence unless it rises to a level known to the law as automatism, and there is no evidence of automatism in this case.”

[30] After further deliberation, the jury acquitted the respondent.

The Issues

[31] The appeal raises two issues:

a) Was there an error in the way the jury was instructed?

b) If there was an error, was it of sufficient significance to warrant setting aside the acquittal and directing a new trial?

[32] On the first issue – whether there was an error in the jury charge – a distinction should be noted between the Crown’s two submissions. The Crown’s first submission is that, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the jury should not be told that the Crown has the burden of proving the knowledge element. Rather, “the jury should be instructed that guilt is established if they are satisfied beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature, without her consent.” If the first submission fails, the second submission is about what else the jury must be told after it is told the Crown has the burden of proving the knowledge element.

[33] In other words, the first submission locates the error in the portion of the charge that describes the Crown as having the burden of proving the knowledge element in a case where there is no air of reality to a defence of honest but mistaken belief in communicated consent. It posits that it is legally wrong to describe the Crown as having that burden in such a case. The second submission locates the error in the portion of the charge that follows; that is, in the portion that tells the jury how they should approach and what they should consider when determining whether the knowledge element is satisfied.

Analysis

(1) The Trial Judge Did Not Err in Instructing the Jury That the Crown Was Required to Prove the Knowledge Element Because That Is a Correct Legal Description of the Crown’s Burden

(a) Elements of an Offence and Jury Charges

[34] A charge to a jury is aimed at ensuring that “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper, 1993 SCC 147, [1993] 1 S.C.R. 146, at p. 163; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 32. As a result, the legal components of the offence properly inform what is in the charge.

[35] However, jury charges are meant to give jurors a functional understanding of what is required to adjudicate the actual issues in the specific case: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 50-52; R. v. Doucette, 2015 ONCA 583, 337 O.A.C. 109, at para. 24. It follows that a jury charge need not include reference to elements of an offence that are not in issue: R. v. MRS, 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 109. As was explained in David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) at Author’s Note, p. xlix:

Instructions on subjects that are not in issue should be avoided. To go where instruction is not required deflects the attention of the jury from the real issues, blurs the focus of the trial and risks jury confusion. The judge’s role is to decant and simplify, as much with reference to legal principles as to a review of the salient features of the evidence. Jury charges are not lectures to law students. Every chapter and every verse of an instruction may not be necessary because some elements or aspects of it are not in issue. The purpose of jury instructions is to inform the decision-maker to make an informed decision in the case they are trying. Nothing more. And nothing less.

(b) The Legal Components of the Offence of Sexual Assault

[36] In the case of a charge of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus of the offence and had the necessary mens rea: Barton, at para. 87.

[37] The Supreme Court of Canada has consistently formulated the mens rea of the offence as including the knowledge element – the requirement that the accused knew of, was wilfully blind to or was reckless about, the absence of the complainant’s consent to the sexual activity. The accused must have intentionally touched the complainant “knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Barton, at para. 87; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24; and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 118.

[38] The Crown’s burden to prove the contents of the actus reus and the mens rea of sexual assault, including the knowledge element, were most recently described by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 25 as follows:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent ... At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent. [Citations omitted, emphasis added].

[39] Because these are the legal components of the offence of sexual assault, on which the Crown bears the burden, a jury would ordinarily be told this to “understand the issues involved [and] the law relating to the charge the accused is facing”: Cooper, at p. 163. These components, including the requirement that the Crown prove the knowledge element, are accordingly reflected in the two model jury instructions commonly used in Canada: Watt’s Manual of Criminal Jury Instructions, at Final 271, and the Canadian Judicial Council, “Model Jury Instruc­tions – Offence 271: Sexual Assault” (May 2019), online: National Judicial Institute <www.nji-inm.ca/index.cfm/publications/model-jury-instructions/offences/sexual-offences/offence-271-sexual-assault/>. Both model instructions start from the implicit premise that the knowledge element is part of the Crown’s burden in all cases. The Watt model varies the instruction on the knowledge element component when the defence of honest but mistaken belief in communicated consent has an air of reality to it; the CJC model instruction adds an additional instruction on the defence of honest but mistaken belief in communicated consent when there is an air of reality to the defence. Neither contemplates deleting the knowledge element component as part of the instruction if there was no air of reality to the defence.

[40] However, the Crown’s first submission is that the Crown’s burden to prove the knowledge element in a charge of sexual assault is inapplicable if the defence of honest but mistaken belief in communicated consent is not available to the accused. On this argument, the knowledge element is simply not in issue whenever the defence is not available, and it is an error for the jury to be instructed that the Crown has a burden to prove it.

[41] I begin the analysis of that submission with a review of the nature of the inquiry into knowledge of lack of consent at the mens rea stage of the analysis and the nature of the defence of honest but mistaken belief in communicated consent. I then turn to the Crown’s submission about the effect of the overlap between the two.

(c) Mens Rea and Consent

[42] Central to both the actus reus and the mens rea for sexual assault is the issue of consent, “the foundational principle upon which Canada’s sexual assault laws are based”: G.F., at para. 1.

[43] The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code, consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.” It means the conscious agreement of the complainant to “every sexual act in a particular encounter”: J.A., at para. 31. Section 273.1(2) of the Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) “authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code”: J.A., at para. 29.

[44] Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determining whether the actus reus was committed: Barton, at para. 89.

[45] At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 26; G.F., at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.

[46] The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused’s mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87.

(d) The Defence of Honest but Mistaken Belief in Communicated Consent

[47] “[T]he common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant”: Ewanchuk, at para. 42. The defence is a “negation of guilty intention”, rather than an affirmative defence – it is a “denial of mens rea”: Ewanchuk, at paras. 43-44.

[48] The defence requires that the accused had “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton, at para. 91 (emphasis in original). From a practical standpoint, the principal relevant considerations are the complainant’s behaviour which is said to have involved communication and the “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: R. v. Park, 1995 SCC 104, [1995] 2 S.C.R. 836, at para. 44 (emphasis in original); Barton, at para. 91.

[49] The defence is limited both by the common law and by provisions of the Code that tightly restrict “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent”: G.F., at para. 1; J.A., at para. 24. As a result, “[n]ot all beliefs upon which an accused might rely will exculpate him”: Ewanchuk, at para. 50.

[50] For example, mistakes as to what amounts in law to consent – for example, a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton, at paras. 98-100.

[51] Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence. It provides that a belief in consent that arose in certain ways will be unavailing. It imposes a precondition of reasonable steps to ascertain consent – “no reasonable steps, no defence”: Barton, at para. 104. And it requires evidence of words or conduct by which the complainant expressed consent. Section 273.2 provides:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from

(i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[52] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to it. If there is no air of reality to the defence, it is not left with the jury. If there is, the onus is on the Crown to negative the defence. If the Crown fails to do so, the accused is entitled to an acquittal. The Crown might disprove the defence by, for example, proving beyond a reasonable doubt that the accused did not take reasonable steps to determine whether the complainant was consenting or that the accused’s mistaken belief was not honestly held: Barton, at paras. 121-23.

(e) The Effect of the Overlap Between the Mens Rea Requirement and the Defence

[53] The Crown’s first submission that, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the Crown’s burden to prove the knowledge element of the mens rea requirement is inapplicable, is grounded in the significant overlap between the two. As the Crown puts it at various points in their factum, “[m]ens rea with respect to non-consent becomes a contentious issue only when there is an air of reality to mistaken belief”; “there is symmetry between knowledge of non-consent and mistaken belief in consent”; “[t]he only non-culpable mental state for sexual assault is honest mistaken belief in communicated consent”; “[w]hen the defence is unavailable, it follows that the accused knew or was wilfully blind or reckless to the absence of consent”; “[k]nowledge of non-consent, a component of the mens rea for sexual assault, is established when the defence of mistaken belief in consent is unavailable”; and “knowledge of non-consent is a non-issue without mistaken belief.”

[54] The Crown’s first submission may be perceived as representing the state of the law prior to Morrison. As Professor Hamish Stewart noted in “Fault and ‘Reasonable Steps’: The Troubling Implications of Morrison and Barton” (2019) 24 Can. Crim. L. Rev. 379, at p. 381:

The case law and commentary before Morrison strongly suggest that a “reasonable steps” requirement, as it applies to an offence that otherwise requires proof of knowledge of an inculpatory fact, creates an alternative route by which the Crown can prove the fault element of the offence. Instead of proving that the accused knew the inculpatory fact, the Crown could prove fault by proving that the accused failed to take reasonable steps, in the circumstances known to him at the time, to ascertain the exculpatory fact.

[55] The view found support, for example, in a passage in R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021. In that case, speaking of the offence of sexual interference contrary to s. 151 of the Criminal Code, which is subject to a statutory “mistaken belief in age” provision in s. 150.1(4), Gascon J. said, at para. 8:

[T]o convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element). [Citations omitted.]

[56] Moreover, the Crown argues that the view is supported by sexual assault cases where there was no air of reality to a defence of honest but mistaken belief in communicated consent, and convictions were upheld even though the jury was instructed to consider only whether the accused had engaged in intentional touching of a sexual nature without the complainant’s consent: see, e.g., R. v. Robertson, 1987 SCC 61, [1987] 1 S.C.R. 918.

[57] On the latter point, I note that it does not necessarily follow that because a jury could be properly instructed in a particular case without reference to the knowledge element, it is always an error to instruct the jury by making reference to the knowledge element. Jury charges are reviewed functionally. There can be more than one adequate way to instruct a jury. And the reasons in Robertson make it clear that the issue the court decided was whether the defence of honest but mistaken belief in communicated consent was to be left with the jury, as Wilson J. defined the issue to be: “Should the trial judge, in every sexual assault case, instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent?”: Robertson, at p. 929. She concluded that the trial judge did not err in instructing the jury without reference to the defence of honest but mistaken belief in consent as there was no air of reality to the defence: Robertson, at p. 940.

[58] However, I need not resolve whether, prior to Morrison, a finding that the knowledge element was satisfied followed automatically, as a matter of law, from the failure of the accused to take reasonable steps to determine whether a complainant was communicating consent, or from the presence of another legal impediment to the defence. I am persuaded that in light of Morrison and developments since, it is not the law now.

[59] I reach this conclusion for three closely related reasons. First, Morrison affirmed as a bedrock principle of criminal law, grounded in the presumption of innocence, that the negation of a defence and the establishment of the Crown’s case have a well-accepted theoretical and legal difference. This difference is to be respected even in cases where there is little practical difference between the negation of a defence and the affirmative establishment of the Crown’s burden. Morrison expressly counselled against reading the passage from George referred to above in a way that would sweep away that bedrock principle. Second, the knowledge element is part of the mens rea requirement formulated by the Supreme Court, including in cases that post-date Morrison. It is thus an essential legal element of the offence and one on which the Crown bears the burden. That legal formulation is not expressed in terms that support the conclusion that the knowledge element is an essential element of the offence only if the defence of honest but mistaken belief in communicated consent is in play. Third, the symmetry between the knowledge element and the defence that the Crown asserts, although extensive, is not complete, since, as the Crown concedes, it is possible to envisage situations when knowledge of non-consent is an issue that do not involve belief in consent.

(i) Morrison Holds That Negativing a Defence Is Not the Same as Proving the Crown’s Case

[60] Morrison established that the Crown negativing a defence is not legally synonymous with the Crown discharging its positive burden to prove its case: at para. 129; see also Carbone, at paras. 120-21. That legal burden remains, even if the displacement of a defence (or its unavailability) makes conviction a “virtual certainty” and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea: Morrison, at para. 88; Carbone, at para. 121. This proposition is fundamentally irreconcilable with the Crown’s first submission.

[61] At issue in Morrison were the child luring provisions under s. 172.1 of the Code. Section 172.1(1)(b) prohibits certain specified internet communications with a person whom the accused believes is under the age of 16. Section 172.1(4) provides a defence to child luring if the accused believed that the person was 16 or over. However, this defence is not available unless the accused took reasonable steps to ascertain the age of the complainant.

[62] The majority of the Supreme Court in Morrison concluded that the failure by the accused to satisfy the reasonable steps requirement does not provide a second pathway to conviction; it merely limits a defence: at paras. 80, 82, 84 and 126. In other words, while the reasonable steps requirement imposes an evidentiary burden on the accused, the Crown still bears the ultimate persuasive burden: Morrison, at paras. 84, 116 and 121. As a matter of law, an accused cannot be convicted simply for failing to establish a defence. The Crown must negate any defence that is raised and also show that all of the essential elements of the offence were proved: Morrison, at para. 90. Whether the accused is convicted or acquitted depends not on whether the accused has made out their defence, but on whether the Crown has proved all of the essential elements of the offence, including the applicable mens rea: Morrison, at paras. 116, 126. If the Crown proves that reasonable steps were not taken, the trier of fact cannot consider the defence that the accused believed the person was of legal age. But that does not relieve the Crown from its burden to prove, beyond a reasonable doubt, that the accused believed the person was not of age: Morrison, at paras. 83, 124.

[63] In Carbone, at paras. 92 and 116-20, Doherty J.A. concluded for this court that even though in speaking for the Morrison majority, Moldaver J. was careful to restrict his reasons to the crime of internet luring relating to a person the accused “believed” to be under 16, the comments he made compel the same conclusion with respect to the offence of invitation to sexual touching contrary to s. 152 of the Criminal Code. Based on those comments, Doherty J.A. held that even where an accused is not entitled to a mistaken belief in age defence, the Crown is still required to prove that the accused believed the complainant was underaged.

[64] Specifically, Doherty J.A. noted that although Moldaver J. stopped short of overruling George, he disapproved of the statement in it relating to mens rea, quoted above in para. 55, that where there is an air of reality to the mistake of age defence, the Crown must prove either the subjective knowledge element of the offence or an absence of reasonable steps: Carbone, at para. 117. Moldaver J. commented that “the passage in question ought not to be interpreted in a way that would sweep aside a bedrock principle of our criminal law” namely the obligation of the Crown not only to negate a defence, but to “show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt”: Morrison, at paras. 90-91. It bears noting that the “bedrock principle” that the Crown must prove the elements of an offence is a constitutionally-protected component of the presumption of innocence: R. v. Oakes, 1986 SCC 46, [1986] 1 S.C.R. 103, at pp. 120-21; Morrison, at para. 85.

[65] In a child luring case, if the Crown proves that reasonable steps were not taken, the trier of fact cannot consider the defence that the accused believed the person was of legal age. But that does not relieve the Crown of its burden to prove, beyond a reasonable doubt, that the accused believed the person was not of age: Morrison, at paras. 83, 124. Even where the defence is unavailable, the evidence as a whole may still leave gaps in the Crown’s case that could give rise to a reasonable doubt as to whether the Crown has discharged their evidentiary burden with respect to mens rea: Morrison, at para. 121.

[66] This court’s decision in Carbone made clear that the positive duty on the Crown to prove each element of the offence beyond a reasonable doubt extends beyond the offence of child luring. The court set out the following steps that a trier of fact should follow when considering the offence of invitation to sexual touching, contrary to s. 152 of the Code. First, the trier must determine whether there is an air of reality to the defence established in s. 150.1(4) (belief that the complainant was 16 or older, a defence which is only available if the accused took all reasonable steps to ascertain age). If there is no air of reality to the defence, any claim that the accused believed the complainant was at least 16 must be “removed from the evidentiary mix.” The trier of fact must then still proceed to consider whether the Crown has proved that the accused had the mens rea relevant to the offence. The Crown cannot prove the requisite mens rea by disproving a mistake of age defence, but must prove the accused had the requisite state of mind: Carbone, at paras. 128-29.

[67] There is no principled basis on which this court could take a different approach to the offence of sexual assault, because the bedrock principle that to secure a conviction the Crown must affirmatively prove the elements of the offence, is equally applicable to that offence. The Crown’s first submission that it is an error for a trial judge to instruct a jury that the Crown must prove the knowledge element in a case where the defence of honest but mistaken belief in communicated consent is unavailable to the accused is irreconcilable with the affirmation in Morrison of the role and importance of this bedrock principle. The analysis flowing from Morrison prevents the conclusion that the absence of the defence of honest but mistaken belief in communicated consent legally removes the burden of the Crown to prove mens rea, including the knowledge element in a sexual assault case: R. v. MacIntyre, 2019 CMAC 3, leave to appeal refused, [2019] S.C.C.A. No. 346, at paras. 51-54; see also Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Carswell, 2021), at 3:23.

(ii) The Supreme Court’s Formulation of the Mens Rea Requirement

[68] In the Supreme Court’s jurisprudence, the extensive overlap between the mens rea requirement and the defence is apparent. Both address the accused’s perception of consent, as it is legally defined for the purposes of sexual assault, against the backdrop of no such consent actually having been given by the complainant. For that reason, “[t]he accused’s perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent”: G.F., at para. 25; Barton, at para. 90. Other indicators of this overlap include that the defence is properly understood as a denial of mens rea: Ewanchuk, at para. 44, and that the mens rea requirement is met if the accused was wilfully blind or reckless regarding the absence of consent, just as the defence is unavailable if the accused’s belief in consent arose from the accused’s recklessness or wilful blindness: G.F., at para. 25; Code, s. 273.2(a)(ii).

[69] However, overlap is one thing. Reading a requirement to prove an element of an offence as being legally contingent upon a particular defence being raised is quite another. This is especially so since Morrison and Carbone concluded that the distinction between the negativing of a defence and the Crown’s burden to prove elements of the offence must be respected even where the displacement of a defence (or its unavailability) makes conviction a “virtual certainty” and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea: Morrison, at para. 88; Carbone, at para. 121.

[70] Although in Ewanchuk, the knowledge element is expressed in terms that come close to suggesting it is the mirror image of the defence, the decision still makes it clear that the knowledge element is part of the mens rea requirement the Crown must prove. And, significantly, the Supreme Court’s subsequent consistent formulation of the mens rea requirement, including in decisions after Morrison, describes the burden on the Crown to show knowledge, wilful blindness or recklessness as to the absence of the complainant’s consent even in cases that go on to mention the defence. This formulation is inconsistent with the conclusion that the burden to establish the knowledge element of mens rea beyond a reasonable doubt legally disappears if the defence of honest but mistaken belief in communicated consent is not available to the accused.

[71] In Ewanchuk, the Supreme Court held that as sexual assault is an offence of general intent, the Crown is only required to prove that the accused intended to touch the complainant in order to meet the basic mens rea requirement. However, Major J. went on to observe that sexual assault is only culpable if the complainant does not consent to the touching, making the defence of honest but mistaken belief in communicated consent relevant. He continued: “As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Ewanchuk, at para. 42.

[72] In cases following Ewanchuk, the Supreme Court has expressed the knowledge element of the mens rea requirement as existing independently of and, in addition to, whether the defence of honest but mistaken belief is at issue, although acknowledging that they cover similar territory. In Barton, for example, Moldaver J. stated that the mens rea was intentionally touching “knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: at para. 87. He went on to say that “[f]or purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent … the focus at this stage shifts to the mental state of the accused” and whether they honestly believed the complainant communicated consent: Barton, at para. 90. And in G.F., Karakatsanis J. described the mens rea in identical terms before going on to say that the “accused’s perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent”: at para. 25 (emphasis added).

[73] The suggestion that the knowledge element of the Crown’s burden is not legally present when the defence of honest but mistaken belief in communicated consent is unavailable was rejected on the basis of these authorities in MacIntyre. I agree with that conclusion. In MacIntyre, the trial judge concluded there was no air of reality to a defence of honest but mistaken belief. He still instructed the panel (the court martial equivalent of a jury) that the Crown was required to prove the knowledge element, but went on to tell them that they should have “no difficulty concluding” that the knowledge element was satisfied if they believed the complainant had not consented. The panel acquitted. The Crown appealed, arguing the court martial judge was wrong to leave the knowledge element to the jury at all. Bennett J.A., speaking for the Court Martial Appeal Court of Canada, said at para. 33:

First, in my view, it is currently settled law by the Supreme Court of Canada that knowledge of the absence of consent is an essential element of the offence of sexual assault as it was of the former offence of rape. Thus, the Crown's principal submission in this case — that absent an air of reality in relation to the accused's honest but mistaken belief, the Crown does not have to prove knowledge of absence of consent — must be rejected. Because knowledge of absence of consent is an essential element of the offence, the Crown must prove it beyond reasonable doubt. The Crown's submission that the mens rea of the offence is simply the intentional application of force is contrary to binding authority.

(iii) Hypothetically, Knowledge of Non-Consent Could Be an Issue Even if Belief in Consent Is Not

[74] As noted above, the Crown’s first submission flows from the assertion of a symmetry between the defence of honest but mistaken belief in communicated consent and the knowledge element of the mens rea requirement — where the former is absent, the latter must, as a legal certainty, always be present.

[75] The Crown argues that a portion of the analysis in Carbone, when applied to the offence of sexual assault, shows that the knowledge element is the mirror image of the defence, leading to the conclusion that the absence of the latter must satisfy the former. However, the portion of the analysis in Carbone that the Crown refers to expressly allows for situations where a non-culpable state of mind could exist, even where the reasonable steps defence was unavailable; it therefore does not support the Crown’s first submission.

[76] In Carbone, Doherty J.A. identified three possible states of mind an accused person could have relating to the age of a minor sexual offence complainant, where the accused does not affirmatively believe the complainant was over 16. The first category includes those who believed the complainant was under 16, or who were wilfully blind to that fact. All of the offenders in the first category would be guilty because for each of them, the requisite knowledge element would be satisfied. The second category includes those who “may have appreciated the risk that the complainant was under 16 and decided to proceed with the activity”. All of the offenders in the second category would be guilty since this state of mind describes the classic, culpable mens rea of recklessness. The third category includes those who “may never have adverted to the complainant’s age and chose to proceed with the activity.” Offenders in this category who have not adverted to the age of the particular complainant because they have made a subjective decision to treat age as irrelevant and take the risk could be said to have the subjective state of mind of reckless indifference, a form of recklessness, and would therefore be guilty: Carbone, at paras. 122-27.

[77] However, and importantly, Doherty J.A. recognized that findings of reckless indifference will tend to apply to most of the people in category three, but there could be circumstances, albeit rare, where that would not be the case. He continued: “While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world”: Carbone, at para. 131.

[78] In opposition to the Crown’s suggestion of symmetry, the respondent raised a number of hypothetical cases in which, he argued, the issue in a sexual assault case would be about whether the knowledge element was present even though honest but mistaken belief in communicated consent would not apply. In MacIntyre, Bennett J.A. postulated a hypothetical to this effect, noting that although an honest but mistaken belief was one way to disprove mens rea in a sexual assault case, it was not the only way. She described a situation in which an accused, through no fault of their own (such as involuntary intoxication) had no belief about the complainant’s consent: at para. 65.

[79] The point of the hypotheticals was to show that there could be cases where the knowledge element was not dependant on whether the accused had an honest but mistaken belief in communicated consent. If that is so, it could not be legally accurate to say that the knowledge element of the offence was dependant on the defence being in play. Indeed, accepting the Crown’s first submission would foreclose consideration of this type of issue when it actually arose in a case.

[80] It is not necessary to consider the validity of any of the hypotheticals offered, as the Crown fairly conceded in oral argument that it was “theoretically possible” that a scenario could arise in a sexual assault case where the defence of honest but mistaken belief in communicated consent was unavailable, but the subjective mens rea requirement, including the knowledge element, was still a live issue. Crown counsel accepted that in such a case, the trial judge would need to instruct the jury accordingly, by leaving the knowledge element of the mens rea issue with them.

[81] In my view, the lack of perfect symmetry, even at a theoretical level, underscores that as a legal matter, the knowledge element is part of the mens rea and thus the Crown’s burden, independently of whether the defence of honest but mistaken belief in communicated consent is available to the accused.

(f) Conclusion on Whether the Trial Judge Erred by Leaving the Knowledge Element of Mens Rea With the Jury

[82] Accordingly, the trial judge did not err when he told the jury that the sexual assault charge contained four elements that the Crown had to prove beyond a reasonable doubt, including the knowledge element; that is, the requirement that the respondent knew of, was wilfully blind or was reckless as to, the complainant’s lack of consent. He did not err because, contrary to what underlies the Crown’s first submission, what the trial judge told the jury was a legally correct description of the Crown’s burden, even in a case where there was no air of reality to a defence of honest but mistaken belief in communicated consent. The knowledge element was not a non-issue, reference to which could only deflect the jury from considering the real issues in the case: R. v. Murray, 20 O.R. (3d) 156 (C.A.), at p. 168.

(2) The Trial Judge Erred in the Way He Instructed the Jury to Consider the Knowledge Element

[83] The fact that it was legally accurate to instruct the jury that the Crown’s burden included the knowledge element does not end the inquiry as to whether the jury charge was adequate.

[84] The charge also had to ensure “the jurors would adequately understand the issues involved … and the evidence they should consider in resolving the issues”: Cooper, at p. 163. They had to understand the law to be applied to those issues and the evidence, the positions of the parties, and the evidence relevant to the positions of the parties: R. v. MacKinnon, 43 O.R. (3d) 378 (C.A.), at p. 386; R. v. Jacquard, 1997 SCC 374, [1997] 1 S.C.R. 314, at para. 14. The trial judge had to isolate the evidence that was relevant to a particular issue: R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101, at para. 30.

[85] While the charge to the jury is not to be scrutinized on a standard of perfection, the parties are entitled to a properly instructed jury, assessed in the context of the charge and trial as a whole: Daley, at para. 31; Jacquard, at paras. 2, 20; R. v. Alvarez, 2021 ONCA 851, at para. 80; and R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

[86] In my view, having decided to instruct the jury as to the Crown’s burden on the knowledge element, the trial judge was required to ensure that the jury considered only evidence that was relevant to that issue, in a way that inoculated them from legal error. He had to ensure that any evidence of the respondent’s mistaken belief in consent was removed from the factual mix the jury considered on this issue, so as not to allow an unavailable defence in through the back door. And he had to guide the jury as to how to approach the knowledge element on the basis of the evidence they could properly consider.

[87] In my view, the jury instruction did not do this.

(a) The Jury Charge Must Protect Against Verdicts Based on Legal Error

[88] In this case, it was incumbent on the trial judge to instruct the jury on what evidence they could consider to conclude whether the knowledge element was satisfied, given that evidence of the respondent’s belief in consent was proffered during the trial.

[89] One way to illuminate that issue is to consider what a trial judge must say in instructing a jury when a defence of honest but mistaken belief in communicated consent is being left with the jury. In that situation, the trial judge must instruct the jury so that it properly considers evidence of belief in consent. The trial judge must, among other things, instruct the jury in a manner that would “inoculate the jury against mistakes of law masquerading as mistakes of fact”, such as a mistaken belief in “implied consent” arising from a lack of objection or ambiguous conduct, or a belief formed from speculation about what was going on in the complainant’s mind, as opposed to expressly communicative behaviour. The trial judge must instruct the jury on the reasonable steps precondition, and the type of evidence that can and cannot constitute such steps: Barton, at paras. 116-19.

[90] Jury instructions in a case where there is no air of reality to the defence of honest but mistaken belief in communicated consent must be equally clear, but in such a case, the clarity required is that evidence of the accused’s mistaken belief in consent is not to be considered at all when the jury determines whether the accused had the necessary mens rea. The provisions of the Code that limit the defence of honest but mistaken belief in communicated consent do not cease to apply to an assertion of a mistaken belief in consent that does not meet the requirements of the defence. The Code is clear. Any belief that does not meet the requirements of s. 273.2 of the Code is not a defence – it is not exculpatory.

[91] As this court held in Carbone in the case of invitation to sexual touching, “[i]f the accused fails to take reasonable steps to determine the complainant’s age, he cannot advance the claim that he believed the complainant was the required age”: Carbone, at para. 130; see also, Morrison, at paras. 83, 121 and 124. Any evidence of belief must be “removed from the evidentiary mix” in considering whether the Crown has met its burden: Carbone, at para. 129. Similarly, evidence of an accused’s mistaken belief in the complainant’s consent to sexual touching must also be removed from the evidentiary mix, if it is not within the range of beliefs in consent that “an accused may lawfully hold”: G.F., at para. 1.

[92] If it were otherwise, an accused could sidestep the stringent requirements for a defence of honest but mistaken belief in communicated consent by relying on this same belief, without reference to the restrictions imposed on it, at the mens rea stage.

[93] Care must thus be taken, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, not to, for example, point the jury to evidence of belief in consent in their consideration of mens rea and thus allow the defence to re-enter through the back door: MacIntyre, at para. 67.

[94] Once the trial judge has ensured that evidence of belief in consent is removed from the evidentiary mix the jury will consider on the knowledge element, it may be necessary to provide the jury with additional guidance on how to approach the knowledge element.

[95] Notwithstanding the legal difference between the Crown’s burden to prove elements of the offence and the non-availability of the defence of honest but mistaken belief in communicated consent, in some cases the circumstances that lead to the conclusion that there is no air of reality to the defence are, practically speaking, the same as those that prove the knowledge element. In other words, in those cases, there is little practical difference between what displaces the defence and what satisfies the knowledge element of the mens rea requirement: Carbone, at para. 121. The jury must be instructed in such a way that it is not misled into seeing more of a distinction than properly exists.

[96] One way of doing so is by means of a “little difficulty” instruction, as discussed in the Alberta Court of Appeal decision in Barton (R. v. Barton, 2017 ABCA 216, 354 C.C.C. (3d) 245, rev’d on other grounds, 2019 SCC 33, [2019] 2 S.C.R. 579). Although this aspect of the decision was not addressed on appeal to the Supreme Court, it is nevertheless instructive. At footnote 105, the Court of Appeal said:

Where mistaken belief is not a live issue, this raises the question whether a trial judge should instruct the jury (providing it is satisfied that all the required actus reus elements were met and the judge has properly outlined these) that: ‘If you are satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to that sexual activity, you should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting to the sexual activity in question or was reckless and chose to take the risk.’ Should more be required, then the jury instructions should identify what it is that the Crown must then prove to bring home to the accused culpability based on actual knowledge or its equivalent, wilful blindness or recklessness.

[97] In MacIntyre, the court picked up this suggestion. Bennett J.A. said, at para. 64:

In consent-or-no-consent cases (including this case, as discussed below), if the trier of fact accepts the complainant's evidence that there is no consent, the knowledge element is easily proven. This supports the suggestion in footnote 105 of Barton ABCA that in the absence of a mistake of fact defence, juries may be told that if they accept the evidence of a complainant on the issue of consent, they will have little difficulty finding the element of knowledge proved. [Emphasis added.]

[98] In sum, to guide the jury on the knowledge element in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the trial judge should proceed as follows:

a. The jury should be instructed that, as a matter of law, the accused cannot rely on a defence that the accused mistakenly believed the complainant consented to the sexual activity. Therefore, the jury is to proceed on the factual premise that the accused did not affirmatively believe that the complainant was consenting or communicating consent.

b. The jury should be instructed that they should not rely on evidence if it is only relevant in supporting an inference that the accused believed that the complainant was consenting or had communicated consent, and the trial judge should provide guidance in this regard by identifying for the jury the type of evidence it should not consider.

c. If there is an air of reality to a defence that the accused did not know of the lack of the complainant’s consent on a basis other than a belief in consent (for example, the type of situation envisaged in the MacIntyre hypothetical), the jury should be directed to the evidence that they should consider on this issue.

d. Where there is no air of reality to the defence of honest but mistaken belief in communicated consent, and no air of reality to a defence that the accused did not know of the absence of consent by the complainant on another basis, the trial judge may tell the jury that it should not be difficult for them to find that the accused knew that the complainant was not consenting, or was reckless or wilfully blind to the absence of consent.

(b) The Instructions in This Case

[99] In this case, the jury was instructed that they should consider all the evidence – the entire interaction – on the question of whether the knowledge element was proven, including evidence that the trial judge had previously summarized. They were told it was all relevant to the issue of whether the knowledge element was satisfied. This included references to the respondent’s evidence that he interpreted the complainant looking and smiling at him, and standing and turning around, as her invitation to him to engage in vaginal intercourse with her, causing him to have no doubt that this was what she wanted, and to infer that she was consenting.

[100] This was evidence of the respondent’s belief in consent. It was also evidence of a mistaken belief, if the jury was addressing the elements in the order the trial judge had instructed. To be considering the knowledge element, they would have already concluded beyond a reasonable doubt that the third element was satisfied; that is, that the complainant had not actually consented.

[101] The jury was not told that the evidence of belief was not exculpatory or a defence, or that it must be removed from the evidentiary mix. Rather, the jury was pointed to it and told it could be considered.

[102] The effect of the trial judge’s charge was to leave evidence of mistaken belief in consent with the jury and invite them to consider it on the issue of the respondent’s “state of mind in relation to the sexual activity … [whether he] was aware that [the complainant] did not consent to the sexual activity in question when he touched her.”

[103] The trial judge did not instruct the jury that there were any limits on when a belief in consent can be lawfully held and when it can have exculpatory effect. Therefore, even viewing the charge as a whole, there is no basis to conclude the jury would have understood those limits from the instructions they were given. While the trial judge did instruct the jury on consent at the actus reus stage, by cautioning them about stereotypes and myths regarding sexual assault, this was not sufficient to make clear that beliefs of the respondent about consent, at the mens rea stage, could not properly be considered exculpatory. As noted above, the Code tightly restricts “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent” and “[n]ot all beliefs upon which an accused might rely will exculpate him”: G.F., at para. 1; Ewanchuk, at para. 50; Code, s. 273.2(a)-(c). The jury was not told in the initial charge that there were any restrictions on the exculpatory nature of mistaken beliefs, depending on what the belief was and how it arose. In effect, they were invited to consider evidence of a mistaken belief in consent which the parties agreed would not have exculpatory effect because there was no air of reality to the defence of honest but mistaken belief in communicated consent that could be based on that evidence.

[104] The jury’s question, about the effect of intoxication, underscores the concern. The fact that the question was asked shows that the limits on when a belief in consent may be exculpatory had not been communicated. Although the intoxication question was answered, the more general concern of what the jury might have considered it could do with evidence of the respondent’s belief in consent remained unresolved.

[105] Given that there was no air of reality to the defence of honest but mistaken belief in communicated consent, the trial judge had to give an instruction that did not risk the jury considering evidence of belief in consent. As the court pointed out in MacIntyre, it is an error to repackage the defence of honest but mistaken belief in communicated consent as an element of the offence by, for example, pointing the jury to evidence of the accused’s belief in consent on the question of whether the mens rea has been established. To do so introduces the defence improperly through the back door: MacIntyre, at para. 67. This error did not occur in MacIntyre, because the trial judge did not point the panel to evidence of belief in consent, but instead told them they should have no trouble finding the knowledge requirement satisfied (if they found there was actually no consent, the main issue in the case). But the error identified in MacIntyre is exactly what occurred here.

[106] Moreover, the trial judge did not provide the jury with guidance as to how to proceed with the evidence they could properly consider. He did not, for example, give an instruction that, based on the evidence they could consider, they should have “little difficulty” in finding the knowledge element satisfied. Nor did he identify what more the Crown had to prove to satisfy the knowledge element.

[107] The instructions directed the jury to evidence of belief in consent, improperly introducing a defence that was not to be left with the jury. The jury instruction did not inoculate the jury against giving effect to legally ineffective beliefs. Nor did it guide the jury on what it could do with the evidence that it could properly consider. In my view, the charge was legally flawed.

(3) The Legal Errors in the Jury Charge Require a New Trial

[108] Where an error in a jury charge might reasonably, in the concrete reality of the case, have had a material bearing on an acquittal, such that the verdict would not necessarily have been the same as if the jury was properly instructed, a new trial should be directed: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16.

[109] The error in the jury charge, in these circumstances, meets that test. The trial judge failed to limit the jury’s consideration of mistaken beliefs that would not actually negate the respondent’s mens rea or otherwise guide them on the evidence they could properly consider on the knowledge element. This error in the jury charge may reasonably have had a material bearing on the jury’s ultimate decision to acquit. The jury’s question suggests that they had reached the knowledge element in their deliberations, and the errors were central to a proper consideration of that issue.

Conclusion

[110] I would allow the appeal, set aside the acquittal, and direct a new trial.

Released: January 13, 2022 “C.W.H.”

“B. Zarnett J.A.”

“I agree. C.W. Hourigan J.A.”

“I agree. David M. Paciocco J.A.”