R. v. Robertson, [1987] 1 S.C.R. 918

Her Majesty The Queen Appellant

v.

James Douglas Robertson Respondent

indexed as: r. v. robertson

File No.: 19813.

1986: December 16, 17; 1987: June 4.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.

*Chouinard J. took no part in the judgment.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Sexual assault ‑‑ Charge to jury ‑‑ Defence of mistake of fact ‑‑ 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 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 244(4), 246.1(1)(a).

Evidence ‑‑ Admissibility ‑‑ Similar fact evidence ‑‑ Accused convicted of sexual assault ‑‑ Whether or not evidence of accused's making a sexual proposition to complainant's roommate admissible ‑‑ If inadmis‑ sible, whether or not s. 613(1)(b)(iii) of the Criminal Code applicable to save conviction.

The accused was charged with sexual assault under s. 246.1(1)(a) of the Criminal Code. At trial, the complainant testified that the accused, a complete stranger to her, gained entry to her apartment early one morning by pretending to be a friend of her roommate. When the complainant asked him to leave under threat of screaming, the accused put one hand over her mouth and with the other hand took hold of her hair, pulled her away from the door and forced her to the floor. He threatened her, struck her once in order to ensure her submission and then sexually assaulted her. The complainant was terrified and lay still, afraid that if she struggled the accused would hurt her. After a while, the accused got dressed and left.

In her testimony, the roommate indicated that she arrived shortly after the incident, found the complainant terribly upset and noticed a bruise over her eye. She also testified that she had met the accused the month before when she served him as a customer at the convenience store where she worked. She saw him twice in the subsequent days and, on the second occasion, they went to the apartment. The accused saw pictures of the complainant and indicated that he would be interested in meeting her. When he then told the roommate that he wished to sleep with her, she refused and asked him to leave. When he refused to do so, she left the apartment and he followed a few minutes later. As they walked towards the bus stop, the accused pinned her to the wall and told her that he could never love her, he could only hurt her.

In defence, the accused conceded identity and argued that the complainant had consented or, in the alternative, that he believed she had consented. He did not testify or call any witnesses. The basis of the accused's alternative argument was alleged inconsistencies in the complainant's testimony.

After hearing all the evidence the trial judge instructed the jury that before the accused could be found guilty of the offence of sexual assault they had to conclude that the Crown had proved beyond a reasonable doubt that the accused engaged in intentional touching of a sexual nature without the complainant's consent. The jury found the defendant guilty as charged but the Court of Appeal allowed the accused's appeal and ordered a new trial. The Court found that the trial judge had failed to instruct the jury on an essential element of the offence‑‑that the accused knew that the com­plain­ant was not consenting or was reckless as to whether she consented or not‑‑and felt that it could not apply the curative provisions of s. 613(1)(b)(iii) of the Criminal Code in such a case. This appeal is to determine (1) whether the trial judge in a sexual assault case must always instruct the jurors that the Crown has to satisfy them beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she consented or not; and (2) whether the admission of the roommate's evidence that the accused had made a sexual proposition to her violated the "similar fact" evidence exclusionary rule.

Held: The appeal should be allowed.

(1) The Trial Judge's Instruction

There must be evidence that gives an air of reality to the accused's submission that he believed the complainant was consenting before the issue goes to the jury. In cases where there is nothing in the Crown's case to indicate that the accused honestly believed in the complainant's consent, the accused bears an evidentiary burden to introduce sufficient evidence if he wishes the issue to reach the jury. Where there is sufficient evidence, adduced by either the Crown or the defence, to put the issue before the jury, the Crown then bears the burden of persuading the jury beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she was consenting or not.

Section 244(4) of the Code is a legislative affirmation of the law previously enunciated as to the sufficiency of evidence required to raise the defence of mistaken belief in consent. It makes it clear that the trial judge should not in every case instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent. The trial judge should only give such an instruction when certain threshold requirements have been met: first, s. 244(4) requires the accused to allege an honest belief in consent; and second, the trial judge should only put the issue of honest belief to the jury if he is satisfied "that there is sufficient evidence and that if believed by the jury the evidence would constitute a defence". The section is not intended to impose the burden of proof of such defence on the accused but merely to affirm the preconditions that must be met before the trial judge is required to put the issue to the jury. Also, s. 244(4) still contemplates that an honest but unreasonable belief in consent will constitute a defence. Nevertheless, it directs the jury to consider the presence or absence of reasonable grounds as an important evidentiary factor in determining whether the accused had an honest belief in consent.

Applying the statutory test to the evidence in this case, the trial judge was right to charge the jury without reference to the defence of mistake of fact. There was not a sufficient factual basis in this case for the accused's allegation that he believed the complainant consented.

(2) The Similar Fact Evidence

Evidence of the accused's discreditable conduct on past occasions that tended to show his bad disposition is inadmissible unless it is so probative of an issue in the case as to outweigh the prejudice caused. The similar fact evidence exclusionary rule can extend to acts other than criminal acts. In the present case, the admission of the roommate's evidence that the accused had made a sexual proposition to her did not violate the "similar fact" evidence exclusionary rule. The probative value of the evidence outweighed its prejudicial value. The bulk of the roommate's testimony was highly relevant to the case. It provided, among other things, the background for the circumstances in which the assault occurred. It was also arguable that it had some relevance to the question of motive and intent. The evidence was thus of some probative value. While there was some element in the accused's conduct with the roommate which could be characterized as discreditable, the prejudice caused to the accused by the roommate's evidence was minimal because, when the roommate indicated that she was not interested in sleeping with him, the accused did not force himself upon her but desisted. In any event, even if the evidence should not have been admitted, the conviction should stand by virtue of the proviso of s. 613(1)(b)(iii) of the Code. Given the persuasive nature of the evidence, the jury's verdict would necessarily have been the same even if the alleged error of law had not occurred.

Cases Cited

Considered: Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570; Sweitzer v. The Queen, 1982 23 (SCC), [1982] 1 S.C.R. 949; referred to: Woolmington v. D.P.P., [1935] A.C. 462; Mancini v. D.P.P., [1942] A.C. 1; Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Cook (1985), 46 C.R. (3d) 128; R. v. White (1986), 1986 1145 (BC CA), 24 C.C.C. (3d) 1; R. v. Moreau (1986), 1986 4618 (ON CA), 26 C.C.C. (3d) 359; R. v. Barrington, [1981] 1 All E.R. 1132; Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 244 [rep. & subs. 1974‑75‑76, c. 93, s. 21; rep. & subs. 1980‑81‑82‑83, c. 125, s. 19], 246.1(1)(a) [en. 1980‑81‑82‑83, c. 125, s. 19], 613(1)(b)(iii).

Authors Cited

Boyle, Christine. Sexual Assault. Toronto: Carswells, 1984.

Cross, Sir Rupert and Colin Tapper. Cross on Evidence, 6th ed. London: Butterworths, 1985.

Hoffmann, L. H. "Similar Facts After Boardman" (1975), 91 L.Q.R. 193.

Parker, Graham. "The "New" Sexual Offences" (1983), 31 C.R. (3d) 317.

Watt, David. The New Offences Against the Person: The Provisions of Bill C‑127. Toronto: Butterworths, 1984.

Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons Ltd., 1961.

APPEAL from a judgment of the Ontario Court of Appeal rendered March 3, 1986, allowing the accused's appeal from his conviction on a charge of sexual assault and ordering a new trial. Appeal allowed.

James K. Stewart and Sarah Welch, for the appellant.

Morris Manning, Q.C., and Paul B. Schabas, for the respondent.

The judgment of the Court was delivered by

1. Wilson J.‑‑The accused was charged with the offence of sexual assault under s. 246.1(1)(a) of the Criminal Code. The main issue is whether a trial judge in a sexual assault case must always instruct the jury that the Crown has to satisfy them beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she consented or not.

1. The Facts

2. The complainant was nineteen years old and had completed her high school education in a small Ontario town. Some three months before the incident she had moved to Toronto. She was living with a girlfriend, Eileen, also nineteen years old, in a flat in a house. The complainant usually worked a day shift from 10:00 a.m. to 5:00 p.m as a waitress in a restaurant. The roommate worked the night shift from 11:00 p.m. to 7:00 a.m. at a nearby convenience store.

3. In late November, 1983, the roommate met the accused, whose first name is Jim, when she served him as a customer at the convenience store. On a subsequent night the accused spent six hours at the convenience store conversing with the roommate. During their conversation the roommate spoke about the complainant and mentioned that they rarely saw each other because of their different work shifts.

4. On December 3, 1983, a man who gave his name as Jim telephoned the apartment where the two young women lived. (At the time of his arrest on December 8, 1983, the accused had a book with the phone number written in it.) The complainant answered the phone. The man asked for the roommate but was told that she was at work. The caller asked if he could come over anyway. The complainant did not know the telephone caller and said no. She told the caller that her boyfriend Doug was coming over shortly. The man said, "If I can't have you, I'll go and get Eileen."

5. On a subsequent occasion the accused, uninvited, met the roommate as she was warming up her car after getting off work in the morning. He indicated that he wanted to talk. After some discussion they decided to go back to the roommate's apartment. The complainant was not at home. In the living‑room the accused saw pictures of the complainant and indicated that he would be interested in meeting her. The accused and the roommate had a lengthy conversation. The accused asked the roommate if he could sleep with her. She refused. He briefly put his arms around her. She asked him repeatedly to leave. He refused. She left the apartment and went out onto the front porch. After a few minutes he came out. The accused decided to take the bus home. The roommate was walking with the accused towards the bus stop when be pinned her up against a wall and stated that he could never love her, he could only hurt her. He told her to take him home by car which she did.

6. On December 6, 1983, the accused telephoned the roommate Eileen at the apartment. She told the accused that both she and the complainant were going to work that night. The roommate left for work at 10:30 p.m. The complainant worked from 5:00 p.m. until 12:00 p.m. This was not her usual shift. The complainant returned home from work at 12:30 a.m. and went to sleep in her bedroom.

7. The complainant testified that at about 4:30 a.m. she was awakened by knocking at the apartment door. She was not expecting anybody. She got up. She was wearing a blue night‑gown and underpants. She went to the front door. This door, which opened into the living‑room, was locked.

8. The complainant asked who was there and the accused replied that it was Bruce. He said that he was a friend of Eileen's and that he had something for her from Eileen. (Eileen had not seen the accused that night, nor had she sent him over.) The complainant asked repeatedly what he had but he would not say. He said the complainant should let him in and he would give it to her. The complainant tried three or four times to telephone Eileen at work to find out if she had sent somebody over. The line was always busy. (Eileen was involved in a lengthy conversation with her boyfriend.) The complainant thought her roommate could be playing a joke on her although she had never done anything like that before. She unlocked and opened the door. The accused entered the living‑room. The complainant had never seen him before. He appeared to have been drinking. She asked the accused who he was and what he had for her but got no response. She asked "Who are you, Bruce?" The accused replied "Bruce, the bad guy." The accused did not interfere when the complainant attempted, again unsuccessfully, to telephone her roommate. The accused used the telephone himself. While the complainant could not recall the substance of the accused's telephone conversation she had the impression he was talking to his brother. He said something about meeting his lawyer the next morning. At the end he said "Tell your wife I love her."

9. The complainant went to the door and told the accused to leave. Instead of making any move to leave he asked if he could sleep with her. At this point the complainant became afraid. She told the accused that if he did not leave she was going to scream whereupon the accused put one hand over her mouth and with the other hand took hold of her hair and pulled her away from the door. He put her on her back on the floor and lay down on top of her. The complainant tried to push the accused off. He told her the more she fought the harder it was going to be for Eileen to find her, that she would never look the same again. The complainant was terrified and lay still.

10. The accused sat on the victim's chest with his knees spread across her arms so that she could not move. She begged him not to go on with what he was doing and to leave her alone. The accused reached behind himself and pushed the com­plain­ant's underpants down, ripping them in the process. He put his finger into her vagina. The complainant was crying. She felt helpless. In cross‑examination she testified that perhaps she should have struggled harder but she was frightened, shaking and confused. She was afraid that if she struggled the accused would hurt her.

11. The accused lay down on the victim and tried to kiss her. She attempted to turn away but he held the back of her head by the hair so that she could not move. She tried to bite his lips. The accused tore her night‑dress and pushed it off her. He then began to take his clothes off. The complainant pleaded with him not to do it. The complainant was going to scream. The accused stuffed a piece of clothing in her mouth to stifle the scream. The accused struck her with his hand across the eyebrow. He told her that if she tried to scream, he was going to see to it that she never talked again. She lay motionless while the accused finished undressing himself.

12. The accused straddled the victim's chest and put his penis in her mouth. His penis was not in her mouth very long and he did not ejaculate. He lay down on top of her again. The complainant had crossed her legs. The accused shoved his knee between her legs forcing them apart. He put his penis into her vagina. The complainant could not be sure whether the accused ejaculated during intercourse or not (subsequent forensic testing uncovered no semen or sperm in swabs taken from the victim). The accused stopped after a while and got dressed. As he was getting dressed, he turned to the complainant and said "You're just like her. You're just like all the rest." The complainant asked him what he meant by that. He said "You're my sixth." He brought the complainant with him to the kitchen. He had a glass of water and drank from a coke bottle.

13. The complainant told the accused that her roommate would be home soon. The accused told the complainant to phone the roommate at work and ask what time she was coming home from work. The accused was standing behind the complainant with his hand on her neck during the phone call. The complainant asked her roommate when she would be home. The roommate said she would be home at the usual time. The roommate testified that the complainant sounded anxious.

14. The accused persisted in asking the complainant if he could return the next night and she finally agreed in order to get him out of the apartment. The accused asked where Eileen or Doug would be if he came. The reference to Doug, whom the complainant had not referred to at any time during the incident, made the complainant remember the call of December 3, 1983 from the man who had identified himself as Jim. She asked the accused if he was Jim but he said nothing. The accused left at 5:15 or 5:30 a.m. After dressing the com­plain­ant telephoned her roommate once again. The roommate testified that the complainant sounded frightened.

15. The complainant went to her room and curled up on her bed. When the roommate got home at 6:45 a.m. she found the complainant terribly upset. She noticed a bruise on the complainant's eye. When the police constable arrived at 8:16 a.m. he also noted that the complainant seemed upset and a little incoherent. The complainant gave the policeman her torn nightgown and underwear. She showed him the coke bottle, glass and telephone (for the purpose of fingerprinting).

16. Doctor Lloyd Gordon examined the complainant at the emergency department of the Wellesley Hospital on December 7, 1983 at 11:15 a.m. He found a red mark over her left eyebrow. It was a mild abrasion such as might be caused by a moderate slap. The complainant also spoke of tenderness in the tailbone. Doctor Gordon noted, upon a vaginal examination of the complainant, that her cervix was slightly red. This was consistent with forced sexual intercourse. In cross‑examination he testified that it was also consistent with energetic sexual intercourse.

2. The Trial

17. At trial the accused conceded identity. However, he argued that the complainant had consented or, in the alternative, that he believed she had consented. The accused did not testify nor did he call any witnesses.

18. The basis of the accused's argument that the complainant had consented or that he thought she had consented was alleged inconsistencies in the complainant's testimony. He identified as an inconsistency the complainant's testimony at the preliminary hearing that the accused had held her hair during the entire incident. At trial, on the other hand, she admitted that he had reduced his hold on her hair at various points. Defence counsel contended that there were three variations as to how the apartment door was closed, i.e., whether the accused sort of kicked it shut, whether he tapped it closed or whether it closed by itself. The complainant did not mention the accused's comments that she was like all the rest and that she was his sixth to the police or at the preliminary hearing. She recalled the comment some six months later. Defence counsel also pointed to the fact that the complainant did not scream, that there was a lack of injury to the genital area except for the redness of the cervix (which could be explained by a number of things) and the lack of apparent injuries to the complainant other than an abrasion above the left eyebrow and a sore tailbone.

19. After hearing all the evidence the trial judge instructed the jury that before the accused could be found guilty of the offence of sexual assault they must conclude that the Crown had proved beyond a reasonable doubt that the accused engaged in intentional touching of a sexual nature without the consent of the complainant. The jury found the defendant guilty as charged.

3. The Court of Appeal

20. An appeal to the Ontario Court of Appeal was successful and a new trial was ordered. The Court of Appeal found that the trial judge had failed to instruct the jury on an essential element of the offence, namely that the accused knew that the complainant was not consenting or was reckless as to whether she consented or not. This failure was compounded by the judge's direction to the jury on intent‑‑"the only intent, the only mental element you need consider is the accused's intention to touch the complainant." Although the members of the Court of Appeal indicated that they had little doubt as to what the answer would have been had the proper instruction been given to the jury, they felt that they could not apply the curative provisions of s. 613(1)(b)(iii) of the Code where there was a failure to instruct the jury on an essential element of the offence.

4. The Legislation

21. This accused was charged under the new sexual assault provisions of the Criminal Code. Several sections are relevant. The offence is set out in s. 246.1(1)(a) which provides:

246.1 (1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for ten years;

The definition of assault is found in s. 244(1) of the Code:

244. (1) A person commits an assault when

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

This definition applies in respect of s. 246.1(1)(a) by virtue of s. 244(2):

244. ...

(2) This section applies to all forms of assault, including sexual assault...

22. An element of assault is the absence of the complainant's consent. Section 244(3) provides:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

Section 244(4), which applies to both assault and sexual assault, provides:

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

5. The Issues

(a) 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?

(b) Did the admission of the roommate's evidence that the accused had made a sexual proposition to her violate the "similar fact" evidence exclusionary rule?

6. When should the trial judge instruct the jury to consider whether the accused had an honest though mistaken belief in consent?

23. Counsel for the accused argues that the accused's knowledge that the complainant is not consenting is an essential element of the offence. Therefore, the trial judge must in every case tell the jury that the Crown must satisfy them beyond a reasonable doubt that the accused knew that the complainant was not consenting or was reckless as to whether she was consenting or not before they can convict. The accused need not introduce any evidence on this issue. Counsel for the defence submits in addition that s. 244(4) codifies the defence of mistake of fact. Under this defence sufficient evidence must be introduced before the trial judge can instruct the jury to consider whether the accused had an honest but mistaken belief that the complainant was consenting when determining his guilt or innocence. In other words, according to defence counsel, the issue of the accused's alleged honest but mistaken belief may come before the jury in two ways‑‑as an element of the offence or as a defence. It is self‑evident that if the accused's counsel is correct, s. 244(4) is rendered redundant. If the issue of honest but mistaken belief is always going to reach the jury as an element of the offence, what does it matter if sometimes it will also reach the jury as a defence? The accused's counsel argues that his position is mandated by previous decisions of this Court.

24. The previous decisions of this Court, in particular Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120, and Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, establish several propositions. First, the mens rea for rape includes knowledge that the woman is not consenting or recklessness as to whether she is consenting or not. Dickson J. (as he then was) stated in Pappajohn, supra, at pp. 139‑40:

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

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

Taking these principles, then, what is the mental element required under s. l43 of the Criminal Code on a charge of rape? This crime was historically regarded as an offence of physical violence. Blackstone defined rape as "the carnal knowledge of a woman forcibly and against her will" (Commentaries, supra, at p. 210). A more comprehensive definition of rape at common law is found in Archbold, Criminal Pleading, Evidence and Practice (38th ed.) (1937), at para. 2871:

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

Section 143 of our Code, in brief, defines rape as an act of sexual intercourse with a female person without her consent, or with consent if that consent is extorted by threats or fear of bodily harm. It will be seen that the statutory definition does not depart in any significant way from the common law definition. For all practical purposes, the Criminal Code merely codifies the common law. The essence of the crime consists in the commission of an act of sexual intercourse where a woman's consent, or genuine consent, has been withheld.

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

McIntyre J. confirmed this view in Sansregret, supra, at p. 581:

I would conclude then that the mens rea for rape under s. 143(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and for s. 143(b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature. It would follow, as has been held by the majority of this Court in Pappajohn, that an honest belief on the part of the accused, even though unreasonably held, that the woman was consenting to intercourse freely and voluntarily and not because of threats, would negate the mens rea under s. 143(b)(i) of the Code and entitle the accused to an acquittal.

25. Traditionally the Court has described this mens rea requirement as a defence of mistake of fact available to the accused. This is how McIntyre J., speaking for the majority, described it in Pappajohn, supra. Dickson J. felt that it was clearer and more accurate to describe knowledge of lack of consent as part of the mens rea. He stated in Pappajohn at p. 148:

Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence.

McIntyre J. confirmed this reasoning in Sansregret, supra, at p. 580:

The defence of mistake of fact has been said to rest on the proposition that the mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence.

26. Although there has been some difference of view on the Court as to whether the accused's knowledge of lack of consent is to be described as an element of the offence or as a defence of mistake of fact, the Court has been unanimous in its agreement on one proposition‑‑there must be evidence that gives an air of reality to the accused's argument that he believed the complainant was consenting before the issue goes to the jury. In addition, I believe that previous case law establishes the proposition that, where there is sufficient evidence for the issue to go to the jury, the Crown bears the burden of persuading the jury beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she was consenting or not. Using the language of Glanville Williams in Criminal Law: The General Part (2nd ed. 1961), at pp. 871‑910, there are two separate burdens in relation to the issue of honest but mistaken belief‑‑the evidentiary burden and the burden of persuasion. Evidence must be introduced that satisfies the judge that the issue should be put to the jury. This evidence may be introduced by the Crown or by the defence. The accused bears the evidentiary burden only in the limited sense that, if there is nothing in the Crown's case to indicate that the accused honestly believed in the complainant's consent, then the accused will have to introduce evidence if he wishes the issue to reach the jury. Once the issue is put to the jury the Crown bears the risk of not being able to persuade the jury of the accused's guilt.

27. McIntyre J., discussing the defence of mistake of fact in Pappajohn, supra, mentioned the evidentiary burden at pp. 126‑28:

This, however, does not mean that the trial judge becomes bound to put every defence suggested to him by counsel. Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial judge must put a defence. Indeed, where it is not present he should not put a defence for to do so would only be to confuse.

What is the standard which the judge must apply in considering this question? Ordinarily, when there is any evidence of a matter of fact, the proof of which may be relevant to the guilt or innocence of an accused, the trial judge must leave that evidence to the jury so that they may reach their own conclusion upon it. Where, however, the trial judge is asked to put a specific defence to the jury, he is not concerned only with the existence or non‑existence of evidence of fact. He must consider, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. This question has been considered frequently in the courts: See Wu v. The King, 1934 28 (SCC), [1934] S.C.R. 609, and Kelsey v. The Queen, 1953 5 (SCC), [1953] 1 S.C.R. 220. The test to be applied has, in my opinion, been set down by Fauteux J., as he then was, in Kelsey v. The Queen.

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

In addition, I would refer to the words of Judson J., speaking for the majority, in R. v. Workman and Huculak, 1963 55 (SCC), [1963] S.C.R. 266 where he said:

I can see no possible ground for any instruction that, on any view of the evidence Huculak could be an accessory after the fact and not a principal. Before this could be done, there must be found in the record some evidence which would convey a sense of reality in the submission (Kelsey v. The Queen, 1953 5 (SCC), 105 C.C.C. 97 at p. 102, [1953] 1 S.C.R. 220 at p. 226, 16 C.R. 119 at p. 125). Failure of counsel to raise the matter does not relieve the trial judge of his duty to place a possible defence before the jury but there must be something beyond fantasy to suggest the existence of the duty.

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

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

28. Dickson J., speaking of knowledge of lack of consent as an essential element of the offence, also held in Pappajohn, supra, that there must be evidence on this issue. He stated at p. 148:

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

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

And he continues his thought at pp. 149‑50:

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

He further stated at p. 158:

If there was "some" evidence to "convey a sense of reality" to a defence of mistake as to consent, then the jury ought to have been instructed to consider that plea. Kelsey v. The Queen, 1953 5 (SCC), [1953] 1 S.C.R. 220, at p. 226.

29. There is nothing in Sansregret, supra, which modifies or overrules the proposition that there is an evidentiary burden on the accused. In Sans‑ regret the accused was tried before a judge without a jury. The line between the evidentiary burden and the burden of persuasion tends to be blurred in such a case. The trial judge found that the complainant consented out of fear and that the accused blinded himself to the obvious and made no inquiry as to the nature of the consent which was given. The mens rea for rape involves a knowledge that the woman is consenting because of threats or fear of bodily harm, or recklessness as to its nature. Therefore, McIntyre J. said at p. 587:

In my view, it was error on the part of the trial judge to give effect to the `mistake of fact' defence in these circumstances where she had found that the com­plain­ant consented out of fear and the appellant was wilfully blind to the existing circumstances, seeing only what he wished to see. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge, in this case knowledge of the nature of the consent. There was therefore no room for the operation of this defence.

30. There is an evidentiary burden on the accused but (and this, in my opinion, is the important point) if there is sufficient evidence to put the issue before the jury, then the Crown has the burden of proving beyond a reasonable doubt that the accused did not have an honest belief as to consent. The defence of mistake, as Dickson J. pointed out in Pappajohn, is simply a denial of mens rea which does not involve the accused in a burden of proof. He does, however, have to adduce sufficient evidence to put the defence in issue. Glanville Williams, supra, at pp. 909‑10, expresses his view that the defence of mistake of fact means that the accused has an evidentiary burden but not a persuasive burden.

31. These conclusions about the nature of the "honest but mistaken belief" argument are, in my view, consistent with the general tenor of the criminal law. In Woolmington v. D.P.P., [1935] A.C. 462, the House of Lords stated that when a defence to a charge of murder is accident or provocation, the burden of satisfying the jury still rests on the prosecution. Viscount Sankey L.C. uttered his famous words at p. 481:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject ... to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner,...the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

32. In Mancini v. D.P.P., [1942] A.C. 1, the House of Lords further clarified their position. The House of Lords pointed out that the judge need not deal in his charge with the issues of accident or provocation merely because the defences are raised. There must be some evidence of accident or provocation that may be true. Then, and only then, must the judge deal with the issue in his summing‑up and then, and only then, must the jury find in favour of the accused unless the Crown satisfies them beyond a reasonable doubt that the defence is untrue.

33. The clearest recognition by the Supreme Court of Canada of the distinction between an evidentiary and persuasive burden is found in Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19. In that case the Court was dealing with the pleas of self‑defence and provocation in the context of a murder charge. The Court quoted Woolmington, supra, and Mancini, supra, and stated at p. 27:

For, once properly instructed as to what the law recognizes as ingredients of self‑defence or of provocation, the accurate question for the jury is not whether the accused has established such ingredients but whether the evidence indicates them. And they, then, must be directed that, should they find affirmatively or be left in doubt on the question put to them, the accused is entitled, in the case of self‑defence to a complete acquittal, or in the case of provocation to an acquittal of the major offence of murder.

34. The courts then have consistently held that the ultimate burden of proof is on the Crown. The legislature has occasionally provided otherwise. Section 8 of the Narcotic Control Act, for example, required the accused to disprove the intent to traffic upon proof of possession. This provision was held to be unconstitutional in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, because it violated the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms.

35. It is against this background that the new sexual assault provisions of the Criminal Code should be considered. In my view, the inclusion of s. 244(4) in the Code makes it clear that the trial judge should not in every case instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent. The trial judge should only give such an instruction when certain threshold requirements have been met. These requirements are totally consistent with the previous case law. First, s. 244(4) requires the accused to allege an honest belief in consent. Second, the trial judge should only put the issue of honest belief to the jury if he is satisfied "that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence". This is consistent with this Court's view that the trial judge should instruct the jury to consider whether the accused had an honest belief as to consent only where there was evidence to support such a plea. When s. 244(4) states that the trial judge should consider whether the evidence would constitute a defence, the defence referred to is, in my view, the defence of mistake of fact. The section is not intended to impose the burden of proof of such defence on the accused but merely to affirm the pre‑conditions that must be met before the trial judge is required to put the issue to the jury.

36. Courts of Appeal have had the opportunity to consider the issue of honest, though mistaken, belief in the context of the new sexual assault provisions. They have concluded that s. 244(4) is a legislative affirmation of the law previously enunciated as to the sufficiency of evidence required to raise the defence of mistaken belief in consent. There must be evidence which gives an air of reality to the defence of mistake of fact before the court will consider it: see R. v. Cook (1985), 46 C.R. (3d) 128 (B.C.C.A.); R. v. White (1986), 1986 1145 (BC CA), 24 C.C.C. (3d) 1 (B.C.C.A.); and R. v. Moreau (1986), 1986 4618 (ON CA), 26 C.C.C. (3d) 359 (Ont. C.A.) The Ontario Court of Appeal decision in Moreau was delivered subsequent to its decision in this case.

37. Once the trial judge decides to put the issue of honest belief to the jury, s. 244(4) states that, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, the trial judge shall instruct the jury to consider the presence or absence of reasonable grounds for that belief. In my view, this part of s. 244(4) reflects the view expressed by Dickson J. in Pappajohn, supra, at p. 156 that:

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

In Textbook of Criminal Law, at p. 102, Professor Glanville Williams states the view, with which I am in agreement, that it is proper for the trial judge to tell the jury "that if they think the alleged belief was unreasonable, that may be one factor leading them to conclude that it was not really held; but they must look at the facts as a whole". It will be a rare day when the jury is satisfied as to the existence of an unreasonable belief.

38. It seems to me, therefore, that s. 244(4) still contemplates that an honest but unreasonable belief in consent will constitute a defence. Nevertheless, it directs the jury to consider the presence or absence of reasonable grounds as an important evidentiary factor in determining whether the accused had an honest belief in consent. This was the view of s. 244(4) taken by the British Columbia Court of Appeal in R. v. White, supra, and the Ontario Court of Appeal in R. v. Moreau, supra. It is also the view taken by the academic commentators: see D. Watt, The New Offences Against the Person: The Provisions of Bill C‑127 (1984), at p. 83; G. Parker, "The "New" Sexual Offences" (1983), 31 C.R. (3d) 317, at pp. 320‑21, although some arrived at this conclusion with reluctance: see, for example, C. Boyle, Sexual Assault (1984), at p. 79.

39. Applying the statutory test to the evidence in this case, I find that there was no error in the trial judge's charge to the jury. The trial judge must be taken to have gone through the exercise mandated by s. 244(4) of considering whether its threshold requirements had been met and, finding they had not, instructed the jury without reference to the defence of mistake of fact. There is not, in my view, a sufficient factual basis in this case for the accused's allegation that he believed the com­plain­ant consented. There is no air of reality to it. The accused did not testify. He called no witnesses. The accused and the complainant did not know each other. The complainant suffered physical injury. The complainant did not scream because of threats of violence and because of actual violence. The complainant's version of events has been consistent. The inconsistencies pointed to by the accused are trivial.

7. Did the admission of the roommate's evidence that the accused had made a sexual proposition to her violate the "similar fact" evidence exclusionary rule?

40. The second issue the accused raises is the admissibility of the evidence of the roommate Eileen to the effect that the accused had made a physical approach towards her and indicated that he wished to sleep with her. He argues that this evidence should have been excluded because of the "similar fact" evidence rule. The rule is an exclusionary rule and an exception to the general and fundamental principle that all relevant evidence is admissible. A general statement of the exclusionary rule is that evidence of the accused's discreditable conduct on past occasions tended to show his bad disposition is inadmissible unless it is so probative of an issue or issues in the case as to outweigh the prejudice caused: see Cross on Evidence (6th ed. 1985) at p. 311. A very useful overview of the similar fact evidence rule is contained in Sweitzer v. The Queen, 1982 23 (SCC), [1982] 1 S.C.R. 949, at pp. 952‑54:

The question of the admissibility of similar fact evidence has been the subject of much legal writing to be found in the decided cases and textbooks and in the academic articles and commentaries. The general principle stated by Lord Herschell in Makin v. The Attorney‑General for New South Wales, [1894] A.C. 57, at p. 65, has been largely accepted as the basis for the admission of this evidence. He said:

In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.

Over the years in seeking to apply this principle judges have tended to create a list of categories or types of cases in which similar fact evidence could be admitted, generally by reference to the purpose for which the evidence was adduced. Evidence of similar facts has been adduced to prove intent, to prove a system, to prove a plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, and for other similar and related purposes. This list is not complete.

The general principle enunciated in the Makin case by Lord Herschell, should be borne in mind in approaching this problem. The categories, while sometimes useful, remain only as illustrations of the application of that general rule.

41. All parties agree that the evidence of the roommate Eileen is relevant and therefore admissible unless (a) it falls within the scope of the "similar fact" evidence rule; and (b) it meets the criteria for exclusion contained in that rule.

42. Does the evidence fall within the scope of the rule? In answering this question, we need to decide whether the accused's conduct was discreditable. The accused's conduct towards Eileen was not criminal. In the passage from Makin v. Attorney‑General for New South Wales, [1894] A.C. 57, Lord Herschell refers only to "criminal acts" and "criminal conduct or character". It appears, however, that discreditable conduct extends beyond criminal acts. This was the view taken by the English Court of Appeal in R. v. Barrington, [1981] 1 All E.R. 1132. In that case, the prosecution sought to bolster the evidence of three young complainants of indecency by the accused with evidence from three other girls. The evidence of these girls indicated that the accused had gone through much the same process of recruiting the girls supposedly for babysitting and showing them pornographic magazines and photographs. It was not, however, alleged that any acts of criminal conduct or indecency took place. The court treated this as similar fact evidence. It decided that the evidence could be properly admitted because its features were strikingly similar to the circumstances surrounding the offence charged and because there was no suggestion that its prejudicial effect outweighed its probative value. Given that the similar fact evidence rule can extend to acts other than criminal acts, it falls to consider whether the probative value outweighs the prejudicial value of the evidence; see Sweitzer, supra.

43. In discussing the probative value we must consider the degree of relevance to the facts in issue and the strength of the inference that can be drawn. The bulk of Eileen's testimony is, of course, highly relevant to the case. It provides the background for the circumstances in which the assault occurred. It makes it clear how the respondent came to arrive at the complainant's doorstep on the morning in question, how he knew to use Eileen's name, why he might be interested in the victim, and why he could have anticipated that the complainant would be home alone at the relevant time.

44. The evidence of the proposition made to Eileen makes the narrative clearer as it indicates the note on which the first visit to the apartment ended. It makes consistent and credible Eileen's assertion that she did not send the accused over to see the complainant on the morning in question. Further, it is arguable that it has some relevance to the question of motive and intent. The Crown suggests that the accused, rebuffed by the roommate Eileen, had a motive for turning his attention to the complainant, a woman in whom he had earlier indicated an interest. The degree of probative value required varies with the prejudicial effect of the admission of the evidence. The probative value of evidence may increase if there is a degree of similarity in circumstances and proximity in time and place. However, admissibility does not turn on such a striking similarity: see L. H. Hoffmann, "Similar Facts After Boardman" (1975), 91 L.Q.R. 193, at p. 201. In my view, the evidence here is of some, though not of great, probative value.

45. Is the evidence prejudicial? In this case, the conduct towards the roommate Eileen is certainly not as discreditable as, for example, the conduct involved in Barrington, supra. In fact, it might be argued that the accused's conduct was not discreditable and hence not prejudicial at all. He propositioned a woman. When she indicated that she was not interested, he desisted. He did not force himself upon her. However, there are elements of the incident which could be characterized as discreditable. After Eileen indicated that she would not sleep with the accused he put his arms around her. She asked him to leave repeatedly and he repeatedly refused. She finally felt she had to leave and go to the outside porch. When they were walking to the bus stop, he pinned her against the wall. He said he could never love her, he could only hurt her. Although this is capable of an innocent interpretation, it is also capable of a sinister interpretation. The evidence causes prejudice but it causes very little prejudice because the accused desisted. I would conclude, therefore, on balance that the evidence was properly admitted.

46. Even if I am wrong in this and the evidence should not have been admitted, the conviction, in my view, should stand by virtue of the saving proviso of s. 613(1)(b)(iii) of the Code. Given the persuasive nature of the evidence in this case the jury's verdict would necessarily have been the same (see Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739) even if the alleged error of law had not occurred.

8. Disposition

47. For the reasons given above I would allow the appeal and restore the conviction.

Appeal allowed.

Solicitor for the appellant: The Attorney General for the Province of Ontario, Toronto.

Solicitor for the respondent: Morris Manning, Toronto.