Court of Appeal for Ontario

Date: 2025-06-20
Docket: COA 23-CR-0302
Coram: Trotter, Zarnett and George JJ.A.

Between:
His Majesty the King (Respondent)
and
Ahmed Othman (Appellant)

Appearances:
Chris Rudnicki, for the appellant
Avene Derwa, for the respondent

Heard: October 24, 2024

On appeal from the conviction entered on January 20, 2023 by Justice Jill C. Cameron of the Superior Court of Justice, sitting with a jury.

Zarnett J.A.:

A. Overview

[1] The appellant was convicted of one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). He challenges the conviction, arguing that the trial judge erred in not leaving the defence of honest but mistaken belief in communicated consent (“mistaken belief in consent”) with the jury. He submits that the result of not doing so was an unfair trial.

[2] For the reasons that follow, I would dismiss the appeal. A defence that lacks an air of reality is not to be left with the jury. The trial judge did not err in concluding there was no air of reality to the defence of mistaken belief in consent in this case.

[3] The complainant and the appellant both testified; although their versions were consistent to a point, they were diametrically opposed concerning the essential aspects of the sexual encounter that occurred between them. The two narratives presented a case of consent or no consent. This was not a case in which it was “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: R. v. Park, para 25.

B. Factual Context

(1) The Common Facts

[4] As noted above, the versions of the complainant and the appellant were consistent up to a point.

[5] Before May 2021, the appellant and complainant did not know each other. They met that month. They were each renting a room in the same house.

[6] They first chatted outside the house on May 22. The next morning, they saw each other in the shared kitchen of the house. The appellant suggested they go out for breakfast. The complainant agreed. They spent time together discussing their backgrounds, families and how they came to Canada.

[7] The complainant asked the appellant if he would pick her up from work that evening, as her shift ended late, she did not have a car, and worked in a remote location. The appellant agreed to do so.

[8] The appellant picked the complainant up from work around 11:00 p.m. When they arrived back at the house, the complainant suggested that they smoke marijuana, which they did together in the appellant’s car while they chatted. They decided to watch a movie together and went inside to the appellant’s room.

[9] Once in the appellant’s room, the complainant laid down on her stomach beside the appellant on his bed, and the two began watching a movie on his laptop computer.

[10] The complainant and the appellant gave diverging accounts of what occurred from that point on.

(2) The Competing Versions of What Occurred

(i) The Complainant’s Version

[11] According to the complainant, a sexual encounter took place beginning about 20 minutes after the movie started, entirely initiated by the appellant. It began with kissing and other touching and progressed through vaginal sex, oral sex, and anal sex. I describe some of the details given by the complainant of the encounter below but begin with the culmination of the complainant’s testimony in chief, in which (after watching her police statement to refresh her memory) she was asked about whether any aspect of the encounter was consensual, and what was communicated about that.

[12] The complainant was asked if at any time, from before the kissing started until after the anal penetration stopped, the appellant had asked her anything or said anything. She answered that at the beginning, which she later clarified to mean after the initial kissing, the appellant asked if she wanted to have sex, and she said no. When asked if she recalled her exact words, she said she did not, but added that she did not say yes. She testified that the appellant “kept saying it was fine” in between the vaginal and anal sex. She testified that the appellant did not at anytime ask her if she was consenting to anything, that she did not, at any point, say to the appellant that she wanted to engage in the sexual activities, nor do anything with her body to initiate any of the sexual activity. She did not think that she had kissed the appellant back when he was kissing her, did not remember making any noises when he was penetrating her orally, vaginally, or anally, and described her outward emotional reaction as just being frozen.

[13] The sexual portion of the encounter began when appellant got up, climbed over the complainant on the bed, grabbed something from the other side of the room, and came back. He then did this again, returning with his pants off. The complainant felt the appellant’s penis on her leg as he climbed over her. She froze and kept looking at the laptop screen. He put his left leg over her right leg. When she tried to turn around, he began kissing her neck and, when she turned again, he kissed her on the mouth.

[14] The appellant then took the complainant’s shirt off. He began kissing her breasts and stomach. The complainant remained still and looked at the ceiling. She did not say anything, hoping he would stop. The appellant pulled off her pants and underwear. He tried to insert his penis into her vagina. She felt pain and discomfort.

[15] The appellant then took out his penis and put it in the complainant’s mouth. She remained still, saying nothing.

[16] The appellant then flipped the complainant over so that she was on her stomach. He put on a condom and began having anal sex with her. She recalled that it really hurt, and she told him to stop. He said he “didn’t cum yet” and continued. Eventually, he stopped and got off her. She did not know whether he had ejaculated.

[17] The complainant got up, retrieved her clothes, and went to her room. She got dressed and texted a friend. Her friend picked her up from the house and drove her to the hospital. She saw a nurse and underwent a sexual assault examination. She went to the police station and gave a statement.

[18] On cross-examination, the complainant acknowledged that she remembered “bits and pieces” of how the various aspects of the encounter unfolded, rather than the precise details of how she went from “being on [her] stomach to on [her] back to on [her] knees”. But she stated: “I know I didn’t consent to it.” She later stated: “I know what happened from the bits and pieces that I remember. I remember I said stop, and he said he didn’t come yet. I remember all of that.”

[19] When various parts of the appellant’s version were put to the complainant, she provided specific denials of some parts, as well as statements along the lines of “I do not recall that happening” about others. When defence counsel suggested to her that the appellant had asked her “do you want to have anal sex?”, she answered “I don’t remember him asking that.” When defence counsel suggested that “[a]fter that question [about wanting to have anal sex], you nod and smile?”, she answered “I don’t remember that.”

(ii) The Appellant’s Version

[20] According to the appellant, after they began watching the movie, the complainant started getting closer and closer to him. He asked if she would like to have sex. In response, she held his cheeks and started French kissing him, which lasted for five to six minutes. The complainant then removed her clothes while he went to get condoms from one of the drawers in his room. They engaged in foreplay for a few minutes. The appellant was on top of the complainant while she was on her back, and they had vaginal intercourse for roughly seven minutes. He testified that everything was normal, and that the complainant seemed to be enjoying it because she was moaning.

[21] The appellant then asked the complainant if she would like to change positions. She got up to get on top of him, he flipped onto his back, and she indicated she wanted to “ride him”. He told her to wait because he had to ejaculate and needed a new condom. The appellant removed the condom and put on a new one. She sat on him and put his penis in her vagina. He testified that she was the one who was moving her body up and down while kissing his neck and trying to give him “hickies”. He told her to stop doing this.

[22] After approximately 10 minutes, he then asked her if she would like to “blow him” and she answered positively. He testified that she held his penis and put it in her mouth. After she finished, he asked her “would you like us to do the doggy-style?” She said yes, got up and put herself in that position, and he put on a new condom. He ejaculated after this and got rid of the condom.

[23] After they had “doggy-style” sex for about 10 minutes, he asked if she wanted to have anal sex. She nodded affirmatively. He told her that he did not have any more condoms and she told him it would not be a problem.

[24] The appellant testified that throughout the sexual activity he thought she was enjoying it and was an active participant. After the sexual activity was completed, they hugged and the complainant put her clothes back on, turned off the light, and left the appellant’s room.

C. The Decision Not to Leave the Defence with the Jury, the Charge to the Jury, and the Verdict

(1) The Decision Not to Leave Mistaken Belief in Consent with the Jury

[25] After the evidence was completed, the trial judge asked counsel to address whether the defence of mistaken belief in consent should be left with the jury. She characterized the defence’s primary position to be that the complainant “consented to all the sexual activity”. After hearing submissions, she rejected the defence request that mistaken belief in consent should be left with the jury, to be considered if “the jury finds that the complainant did not consent”. She held there was no air of reality to the defence.

[26] The question to be determined, according to the trial judge, was whether there was evidence on which a properly instructed jury, acting reasonably, could find that the appellant took reasonable steps to ascertain consent and honestly believed the complainant communicated consent through words or conduct. She looked at whether the defence could arise based on each version of the events.

[27] The trial judge characterized the appellant’s evidence as pertaining only to whether the complainant actually consented rather than to a mistaken belief in consent. She pointed out that his testimony was that “[w]ith respect to each sexual act … he asked the complainant if she wanted to do it and the complainant agreed”. During submissions on this issue, the trial judge asked defence counsel: “So you agree that his testimony is that [the complainant] consented to all of the sexual activity that occurred that evening”, to which defence counsel agreed.

[28] The trial judge turned to whether, if the jury found the complainant did not actually consent (which necessarily entailed rejecting the appellant’s version), the mistaken belief in consent defence could arise on the complainant’s version.

[29] Defence counsel conceded that on the complainant’s version of events, there was no air of reality to the defence of mistaken belief. In other words, on her version, the complainant did not do or say anything on the basis of which the appellant could have believed she communicated consent nor, on her version, had he taken any reasonable steps to ascertain consent.

[30] Defence counsel argued, however, that because the complainant did not remember if she was asked to participate in anal sex and what her answer was to that question, there was an air of reality to the defence because the jury could find that the appellant had proposed anal sex and the complainant agreed. The trial judge disagreed, stating:

The fact that [the complainant] testified she did not recall that question being asked does not provide an evidentiary foundation upon which a properly instructed jury, acting reasonably, could find that [the appellant] took reasonable steps to ascertain consent; and that he honestly believed the complainant communicated consent. Therefore, there is no air of reality to the defence.

(2) The Charge to the Jury

[31] The trial judge instructed the jury that they could accept all, part, or none of the evidence of any witness and gave the jury guidance on the assessment of the reliability and credibility of the evidence that they had heard. In accordance with R. v. W.(D.), she told the jury that if they believed the appellant’s evidence or if it raised a reasonable doubt, they must acquit, and even if they rejected his evidence, they were not to convict unless satisfied of his guilt beyond a reasonable doubt on the basis of the evidence that they did accept.

[32] In summarizing the evidence, the trial judge pointed out that the complainant had testified that she had consented to none of the sexual activity that had occurred, while the appellant was “adamant that the sexual activity was only done with [the complainant’s] consent”.

[33] The trial judge outlined the elements of the offence, differentiating between those elements that were conceded and those that were in issue. In the first category, she told the jury there was no issue that the appellant had touched the complainant intentionally and that the touching was of a sexual nature. Thus, they did not have to deliberate on those elements.

[34] Turning to the elements of the offence that were in issue, the trial judge explained that the Crown had to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity in question; that consent had to be given for each and every act that occurred; that consent had to be communicated by words or conduct; and that there was no consent unless the complainant “agreed in her mind to the sexual activity at the time it was occurring”. She told them that there was no obligation to express a lack of consent and that silence, submission or lack of resistance were not consent.

[35] The trial judge referred the jury to certain specific evidence that they might wish to consider on the issue of consent. She referred to the complainant’s testimony that at no time did she, by words or conduct, consent to any of the sexual activity and that she had unsuccessfully asked the appellant to stop when he was anally penetrating her. The trial judge also reminded the jury of the appellant’s evidence that everything that occurred was consensual, including his evidence that he had asked if she wanted to have sex, to which she responded by kissing him, taking her clothes off and eventually putting his penis inside her; that he had asked her about oral sex and she had expressly agreed; that he had asked about “doggy-style” sex and she had moved into that position.

[36] The trial judge specifically instructed the jury that they did not have to be satisfied that the complainant did not consent to all aspects of the sexual touching; it was sufficient that they found that the complainant had not consented to some aspect of the sexual touching, and that the appellant knew she did not consent to that act.

[37] The trial judge instructed the jury that the Crown also had to prove that the appellant was aware of the complainant’s lack of consent, and that such awareness could consist of actual knowledge, recklessness, or wilful blindness. She did not direct the jury to any particular evidence that would assist them on that issue, nor did she tell them there was any evidence that they were not to consider. In her general instructions, she told the jury that they must base their decision on all of the evidence.

(3) The Verdict

[38] The jury found the appellant guilty.

D. Analysis

(1) The Parties’ Positions

[39] The appellant argues that the trial judge erred in declining to instruct the jury on mistaken belief in consent, resulting in an unfair trial.

[40] The appellant stresses that the sexual encounter proceeded in phases; there were a number of sexual acts. Although the complainant testified there was no consent to any of the acts, and the appellant testified that everything was consensual, the jury was invited by the Crown, and instructed by the trial judge, to consider what the appellant terms an alternate route to liability – namely that the complainant did not consent to one of the acts even if she consented to others. Because the jury could accept all, some or none of any witness’s evidence, and since consent is completely about what is subjectively in the mind of the complainant, it was, according to the appellant, reasonably possible that the jury could find the complainant consented to the earlier phases of the sexual encounter but later withdrew her consent without the appellant’s knowledge. In other words, it was possible to splice or cobble together parts of the evidence to construct a version in which the appellant asked for consent to each phase, the complainant gave consent to earlier phases but at some point, withdrew that consent without the appellant’s knowledge.

[41] The Crown argues that the trial judge properly declined to leave the defence of mistaken belief in consent with the jury, as the evidence of the complainant and the appellant were diametrically opposed concerning the sexual activity that occurred, and there was no way to coherently cobble together their versions so as to give the defence an air of reality.

[42] The Crown also argues that the failure to leave the defence with the jury did not result in a miscarriage of justice, because the trial judge’s mens rea instructions essentially left the defence in play. The Crown relies on the curative proviso.

(2) Discussion

(i) The Standard of Review

[43] The decision whether to put a defence to the jury is a question of law, reviewable on a standard of correctness: R. v. Cinous, 2002 SCC 29, para 55.

(ii) The Air of Reality Test

[44] The air of reality test screens what defences are put to the jury. A trial judge must put to the jury all defences which have an air of reality and must keep from the jury any that do not: Cinous, para 51.

[45] The test requires the trial judge to determine whether there is an evidential foundation for the defence, without usurping the jury’s role. In determining whether a defence has an air of reality, the trial judge is to consider “whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue”. The question is whether there is evidence on which a reasonable jury, properly charged, could – if they believed that evidence – have acquitted the accused: Cinous, at paras. 54, 60.

[46] The defence of mistaken belief in consent posits a situation in which there was no consent, but the accused, having taken reasonable steps to ascertain consent, believed honestly but mistakenly, that the complainant had communicated consent. In order to assess whether, in this case, there was an air of reality to that defence, I first discuss some of the relevant concepts that inform the elements of the defence. I then turn to the approach to whether the defence has an air of reality in cases of diametrically opposed – consent or no consent – narratives.

(iii) Consent

[47] Consent, the foundational principle upon which Canada’s sexual assault laws are based, is analyzed from a different perspective at the actus reus stage and the mens rea stage: R. v. G.F., 2021 SCC 20, para 1; R. v. Barton, 2019 SCC 33, para 89.

[48] The actus reus of the offence of sexual assault is committed where “touching of a sexual nature occurred, and … the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching”: R. v. H.W., 2022 ONCA 15, para 46; G.F., at para. 25. In so far as consent is concerned, the question at the actus reus stage 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.

[49] The mens rea element of the offence focusses on the accused’s mental state – the consent question being whether the accused knew of, or was wilfully blind or reckless as to, the lack of consent: Barton, at para. 87; G.F., at para. 25.

(iv) Mistaken Belief in Consent

[50] The defence of mistaken belief in consent is a “denial of mens rea”: R. v. Ewanchuk, paras 43-44. It recognizes that in some circumstances “it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but mistakenly believe that the complainant consented” and therefore for the actus reus of the offence to have been committed without the necessary mens rea: R. v. Davis, para 80.

[51] 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). 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”: Park, at para. 44 (emphasis in original); Barton, at para. 91.

[52] Not any mistaken belief in the existence of consent, even if honestly held, will support the defence. 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; R. v. J.A., 2011 SCC 28, para 24. Mistakes as to what amounts in law to consent – such as a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton, at paras. 98-100. Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence, including requirements that the belief was based on the complainant’s actual expression by words or conduct, that the belief did not arise through recklessness or wilful blindness, and that the accused took reasonable steps to ascertain that the complainant was consenting. As the Supreme Court stated in Barton, at para. 104, “no reasonable steps, no defence”.

(v) The Air of Reality Test and the Defence of Mistaken Belief in Consent in Cases of Conflicting Narratives

[53] The same air of reality test applies to the defence of mistaken belief in consent as to any other defence: Cinous, at para. 57. The defence will be left with the jury only if it has an air of reality. There must be an evidential foundation that, if accepted by the jury, can satisfy the requirements of the defence in light of the legal limitations on its availability. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent: Barton, at para. 121; Davis, at para. 81.

[54] Deciding on which side of the air of reality line a particular case falls is important. For both practical and policy reasons, judges have been cautioned against being too eager to put the defence of mistaken belief in consent to the jury because it is the rare exception, rather than the general rule, that a sexual assault will have been committed by accident: Park, at para. 21.

[55] The defence may arise in cases where the complainant and the accused have given similar versions of the facts, and the only material contradiction is in their interpretation of what happened. In such cases “the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent”: Park, at para. 26.

[56] In other cases, the events that occurred are described in diametrically different terms by the complainant and the accused. In some of those cases, the issue will simply be one of consent or no consent and the trial becomes, essentially, a pure question of credibility as between the complainant’s version and that of the accused with no third possibility of a mistaken belief in consent arising: Davis, at paras. 84-85. As the Supreme Court noted in Park, at para. 26:

[C]ourts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.

[57] But the existence of diametrically opposed versions does not, in and of itself, preclude the possibility of there being an air of reality to the defence of mistaken belief in consent, where “a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence” or, put differently, where it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: Park, at para. 25. One important consideration in deciding whether splicing or cobbling together is realistically possible is whether “the acceptance of one version [would] necessarily involve the rejection of the other”: Park, at para. 25.

[58] An example of when “cobbling” can occur is when the accused testifies to having taken reasonable steps to ascertain consent and the complainant has no memory of what transpired. In such a case, the cobbled together version does not include mutually exclusive strands. In R. v. Esau, para 19, the majority explained:

The absence of memory by the complainant as to what happened in the bedroom makes it easier to “cobble together” parts of both the accused and complainant’s evidence to reach a reasonable conclusion of honest but mistaken belief. Any number of things may have happened during the period in which she had no memory. The evidence of the accused combined with the lack of memory of the complainant and, as previously noted, the absence of violence, struggle or force, when taken together makes plausible and gives an air of reality to the defence of mistaken belief.

[59] In Davis, at paras. 85-86, the court highlighted another consideration relevant to deciding whether it is realistically possible to “splice together the evidence [from two diametrically opposed versions of what occurred] to create a third version of events in which the accused honestly but mistakenly believed the complainant consented”. The nature of the evidence must go beyond the mere assertion that the accused believed the complainant consented and include evidence of a “situation of ambiguity”. The court endorsed the statement of McLachlin J. (as she then was) in Esau, at para. 63 (although made in dissent) that:

There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant’s lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. [Emphasis added.]

[60] The requirement that a version of events, spliced together from different and contrasting sources of evidence, present a situation of ambiguity before the defence of mistaken belief in consent will reasonably arise has been explained in some cases as the equivalent of a situation where the parties' versions differ not about what happened, but how to interpret what happened: R. v. Gilbert, 2024 BCCA 310, para 36, quoting with approval R. v. Hoffman, 2024 BCCA 98, para 148, adopting the statement in R. v. Comin, 2022 BCSC 530, para 34; R. v. Sheikh, 2025 ONCJ 10, para 99.

[61] To summarize, the mistaken belief in consent defence may have an air of reality even in a case which primarily presents as one of consent or no consent based on diametrically opposed narratives. But in the words of Park, at para. 25, it will only have an air of reality if it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”. That will not be the case where the cobbled together scenario consists of strands of evidence that are mutually exclusive in the sense that acceptance of one would involve the rejection of the other. Further, the cobbled together scenario must be a “situation of ambiguity” – one in which there is both no consent and evidence that explains how the accused took reasonable steps but nonetheless could honestly have mistaken the complainant to have communicated consent of a nature required by the Code.

[62] If cobbling or splicing together of evidence from diametrically opposed versions in a manner that respects these parameters cannot be achieved, there is no air of reality to the defence. “If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and the defence of mistaken belief in consent should not be put to the jury”: Park, at para. 25.

(vi) Application to this Case

[63] As the trial judge correctly observed, the evidence presented a case of consent or no consent. The versions of the encounter given by the complainant and the appellant were diametrically opposed about each aspect of the sexual touching. The complainant testified that she had consented to none of the sexual activity that had occurred while the appellant was “adamant that the sexual activity was done with [the complainant’s] consent”.

[64] The complainant’s evidence that she did not consent was closely tied to her evidence that she froze when the appellant, uninvited, initiated sexual touching, said nothing to indicate consent, said “no” when the appellant asked her if she wanted to have sex, did not move her body, make any sounds or react emotionally in a way that would indicate consent, and told the appellant to stop after he anally penetrated her. On her version, all of the sexual activity, from kissing and touching, through vaginal, oral, and then anal penetration, was initiated and continued by the appellant in the face of her lack of communicated consent and in spite of her communicated non-consent.

[65] On the other hand, on the appellant’s version the complainant initiated the sexual activity and was an active and willing participant in all of it. He testified that he asked the complainant if she wanted to have sex, to which she responded by French kissing him; that he returned to the bed to find her naked after he went to get a condom; that she willingly made out with him and engaged in vaginal intercourse which she enjoyed; that he asked her if she wanted to change positions which she then did; that she moved her body up and down doing all the work during intercourse; that she said she wanted to “blow him” and held his penis in her mouth to perform oral sex; that she agreed to his request to do “doggy-style”; that she nodded and smiled when he asked her if she wanted to have anal sex; that she said it was not a problem that he had no more condoms before having anal sex; and that he could tell from her facial expressions and moaning sounds that she was enjoying it.

[66] The totality of the evidence closely approximated the situation that Park characterized as one where the defence would generally not be put to the jury. This was not a case where the complainant and the accused’s versions of the sexual encounter were similar and the only material contradiction was in the respective interpretations of what occurred. Rather, it was one in which the appellant had clearly based his defence on voluntary consent, and had testified that the complainant was an active, eager and willing partner, whereas the complainant testified that she did not consent and that the appellant proceeded in the face of a lack of any indication of consent and two statements by her of non-consent. It was a case where the question was “simply one of credibility, of consent or no consent”.

[67] This case is not similar to the situation in Esau where the accused testified to having engaged in sex with the complainant’s consent and the complainant testified that she had no memory of what happened and did not testify that she did not in fact consent. Although an absence of memory by the complainant can make it easier to cobble together parts of the evidence to create a reasonable scenario in which the defence applies, the complainant in this case did not lack a memory of what occurred in any way analogous to the complainant in Esau.

[68] Nor is this a case like R. v. J.B., 2024 ONCA 465, where this court found that the trial judge erred in failing to instruct the jury on the mistaken belief in consent defence. In J.B., the accused testified that he received affirmative consent prior to engaging in intercourse and that the complainant was an active and willing participant until she fell asleep, when he stopped. The complainant agreed that he had asked her on two occasions if she wanted to have sex, but her memory failed her on what happened. In contrast, in this case, the complainant testified to having said no when initially asked if she wanted to have sex, testified to having told the appellant, unsuccessfully, to stop after he penetrated her anally, and had a recollection of the events that occurred during the sexual encounter.

[69] The appellant argues that since the Crown submitted to the jury that they need only find one aspect of the sexual touching occurred without consent, and the trial judge so instructed the jury, an alternative route to liability was introduced, and a scenario in which the conflicting versions could be spliced together in a way that the defence could reasonably arise existed. Specifically, he argues that the jury could have found that “the complainant consented to the initial stages of the encounter but that she withdrew her consent at some later point, without the appellant’s knowledge”. Not putting the defence to the jury was unfair, he argues, because “[t]he Crown was permitted to advance a theory on a version of evidence contrary to the complainant’s testimony, while [the defence] was not permitted to advance a theory on a version of the evidence contrary to the appellant’s”.

[70] I do not accept this submission.

[71] First, the trial judge’s instruction that the jury need only be satisfied that one aspect of the sexual touching occurred without consent was appropriate. Consent must exist for each and every sexual act at the time it occurred: J.A., at para. 34. An accused charged with sexual assault arising out a sexual encounter that included more than one sexual act is at risk of conviction if any of the acts occurred without consent, not just if all of them did. This is not an alternative route to liability, but an included one.

[72] This is not a case like R. v. Somers, 2009 ONCA 567, relied on by the appellant. In Somers, “both the [accused] and complainant had consumed a substantial amount of alcohol, … raising a serious concern about the reliability of both of their purported clear – but opposite – memories of the events of that evening”: at para. 9. Although the complainant had testified that she understood what has happening and told the accused “no”, during the pre-charge conference, the trial judge raised the issue of whether the complainant had the capacity to consent because of sleep or intoxication. As a result of the trial judge’s decision to leave a second potential basis for criminal culpability, this court found that the defence of mistaken belief in consent should have been put to the jury. Once the trial judge decided to introduce a potential basis of liability that was directly contrary to the complainant’s evidence the trial judge should have put a similar alternative scenario to the jury.

[73] Here, the trial judge’s correct instruction about what was necessary for the jury to find cannot be equated with the introduction of an alternative route of liability directly contrary to the complainant’s evidence. In any event, I do not read Somers to say that, even if the defence lacks an air of reality, it is to be put to the jury if the Crown relies on a theory of liability that does not depend on the acceptance of all of the complainant’s evidence. I take Somers to have held that, on the factual scenario that underpinned the alternative theory of liability in that case, there was an air of reality to the defence. That is not the situation here, for two reasons.

[74] First, as noted in Park, a scenario cannot be cobbled together from strands that each require the rejection of the other. The appellant proposes a cobbled together scenario in which “the complainant consented to the initial stages of the encounter but that she withdrew her consent at some later point, without the appellant’s knowledge”. Such a scenario would have to include evidence of non-consent to the later phase of the encounter, but also of reasonable steps and a belief by the appellant in communicated consent relating to that later phase.

[75] But the complainant’s evidence of non-consent (or consent that was “withdrawn”) to the later phase of the encounter – the anal sex – includes her request to the appellant to “stop”, which he ignored. Accepting the complainant’s evidence of non-consent would require rejection of the appellant’s evidence that would have to form part of the scenario – that he requested and obtained consent to the entire episode of anal sex. Similarly, accepting the appellant’s evidence that he sought and obtained consent and was never told differently would require rejection of the complainant’s evidence of non-consent comprised of her request to the appellant to stop.

[76] Second, there is an absence of evidence that explains how, even though the complainant was not consenting to the later phase of the encounter, the appellant took reasonable steps and could honestly have misapprehended that the complainant was communicating consent to that sexual activity. He testified that he asked for and obtained consent at each phase of the sexual encounter, including the later phase. She testified that she told him to stop after he anally penetrated her; he ignored that and continued. There was no situation of ambiguity.

[77] In other words, even as it pertained to the later phase of the encounter, the versions of the evidence are diametrically opposed and present an issue of consent or no consent. No splicing of the evidence is available that gives rise to a situation of ambiguity, in which the versions of the evidence are reconciled such that the divergence involves only how the appellant and complainant interpreted the situation, rather than about what transpired.

[78] Moreover, the trial judge’s instructions to the jury expressly negated the risk that the appellant could be convicted on the scenario the appellant posits, namely if the jury found that the complainant consented to earlier phases of the encounter but that she later withdrew her consent without the appellant’s knowledge.

[79] The trial judge instructed the jury that it was sufficient that they found that the complainant had not consented to some aspect of the sexual touching, and that the appellant knew she did not consent to that act. She explained that:

Some of you may find beyond a reasonable doubt that she did not consent to one part of the sexual touching, and some of you may find beyond a reasonable doubt that she did not consent to a different part of the sexual touching. As long as you all agree, or all find beyond a reasonable doubt that [the complainant] did not consent to some aspect of the sexual touching, and [the appellant] knew that she did not consent to that act, then he is guilty of sexual assault. [Emphasis added.]

E. Conclusion

[80] The defence of mistaken belief in consent was properly kept from the jury. There was no air of reality to it. The trial was not unfair. It is unnecessary to address the Crown’s submission concerning the curative proviso.

[81] I would dismiss the appeal.

Released: June 20, 2025

“G.T.T.”
“B. Zarnett J.A.”
“I agree. Gary Trotter J.A.”
“I agree. J. George J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] I have shortened the description of the defence for ease of reference only; the abbreviated formulation is not intended to change the substantive content of the defence.

[3] Per L’Heureux-Dubé J. The passages of her reasons in Park cited herein were agreed to by five other members of the court.

[4] In closing submissions to the jury, Crown counsel at trial also made this point.