Court File and Parties

Court File No.: CR-23-00000019-0000
Date: 2025-01-31
Court: Ontario Superior Court of Justice

Between:
His Majesty the King
Applicant, represented by Barbara Bujnowski

-and-

Michael Tewolde
Respondent, represented by Mark Evans

Heard: January 30, 2025

Reasons for Decision

(Honest but Mistaken Belief)

Latimer

Introduction

[1] An allegation of sexual assault is being tried by jury. The Crown alleges that the defendant sexually assaulted the complainant by attempting vaginal intercourse. The parties were strangers who had met earlier at a bar in St. Catharines. The defendant deceived the complainant into attending his home for an “after party”, but upon arrival the truth – and an empty house – was revealed.

[2] The complainant, burdened by fatigue and alcohol consumption, went to rest on the defendant’s bed. On her evidence, she awoke to the defendant kissing her and touching her breasts and vagina with his hands. This continued for a time before she realized he had inserted his penis into her vagina. She immediately stopped the defendant and demanded a ride back to her vehicle. During the ride home, she recorded their conversation where she confronted the defendant on what he had done. The complainant was the only witness at trial.

[3] During the pre-charge meeting, the defence requested the jury be instructed on honest but mistaken belief in consent. The Crown opposed the request. For reasons that follow, I decline to instruct on this point because the air of reality test has not been satisfied.

I. The Air of Reality Test

[4] The Court of Appeal for Ontario’s decision in R. v. Sanclemente, 2021 ONCA 906 addressed this issue and provides an authoritative review of the applicable legal standards. Justice Watt, writing for the Court, explains the air of reality test at paragraphs 84-85 of the judgment:

The air of reality standard requires a trial judge to consider all of the evidence adduced at trial and to assume the evidence an accused relies upon in support of a defence in issue to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53. The test is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous, at paras. 49, 82; R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21.

A trial judge’s threshold determination about an air of reality does not target the substantive merits of the defence, justification, or excuse in issue. The reason is simple: that issue falls within the exclusive province of the jury. And so it is that the trial judge does not:

i. make determinations about the credibility of witnesses;
ii. weigh the evidence;
iii. make findings of fact; or
iv. draw determinate factual inferences.

[5] The Sanclemente judgment further addresses the test’s application to the defence[^1] of honest but mistaken belief in communicated consent. As Watt, JA explains at paragraph 89:

The requirement for the defence that an accused have an honest but mistaken belief that the complainant actually communicated consent by words, conduct or both means that the principal considerations in determining its availability are:

i. The complainant’s actual communicative behaviour; and
ii. The totality of the relevant and admissible evidence explaining how the accused perceived the complainant’s behaviour to communicate consent. (para. 89)

[6] Parliament has statutorily narrowed the availability of the defence in several ways, including establishing a requirement that an accused person “take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”: Criminal Code, s. 273.2(b).

II. The Available Evidence

[7] In the present case the defendant – as is his right – did not testify. What this means, however, is that the only available evidence comes from the complainant and the video recordings she took post-incident.

[8] The complainant testified that she fell asleep in a curled-up position on the defendant’s bed. She awoke to the sensation of being kissed on the face and breast area. He was behind her, in a spoon-like position. She explained that she did not push him off, but “I was never really enthusiastic”. She did not recall if she kissed him back to any degree.

[9] The defendant began to touch her breasts with his hands, before moving down and fondling her vaginal area, having pulled down her clothing to expose her buttocks and vagina.

[10] The complainant testified to her state of mind during the portion of the interaction. She testified that she felt drunk, and tired, and not fully aware of her circumstances, and “not in a state to provide proper consent”. She didn’t expressly object to the touching that was occurring, nor did she push him away. She agreed in cross-examination that she had told the police in her statement that the “sensory of neck kisses felt good”, and “I was letting him like finger me and like I was liking it”. She did clarify, however, as follows:

“I was so drunk and tired and I knew it was fingers and I guess the fingering I didn’t oppose it and I guess it felt good, I was really drunk, how could you consent? But I guess I was okay with it after he started doing it, but was I okay with it? I was too drunk.”

[11] She testified that at no time did she affirmatively communicate consent for any specific sexual activities. “I never said yeah I want you to kiss me I just went along with it I didn’t fight him off”. She did, however, “snap awake” from a “half asleep, half awake” state when she realized he had placed his penis inside her vagina. She sprang out of bed, angry, panicked but trying not to show it, and demanded to be driven home. She also started recording, both to protect herself and to obtain admissions from the defendant of what he had done.

III. Legal Analysis

[12] In his submissions, Mr. Evans, on behalf of the defendant, points to several utterances contained in the subsequent recordings as an available evidentiary basis for the jury to conclude that the Crown has not proven mens rea beyond a reasonable doubt because the defendant made an honest mistake regarding the complainant’s consent to penile penetration. Specifically, utterances where the defendant states that he was confused because it appeared to him that the complainant was enjoying the earlier physical acts of kissing and digital penetration. The Crown responds that these utterances do not amount to actual evidence of affirmative consent, and a judicial determination that, because the complainant consented (if indeed she did) to kissing and digital penetration she affirmatively consented to intercourse, is a violation of one of the twin myths that underlie section 276 of the Code; i.e. consent to one sexual activity does not amount to consent for another.

[13] Mr. Evans relies on the Court of Appeal’s recent decision in R. v. JB, 2024 ONCA 465, as support for his position. In that decision, the Court determined that a trial judge had erred in failing to instruct the jury on honest but mistaken belief in consent in circumstances that bear some factual resemblance to the present case. The complainant and defendant met at a bar. She returned to his residence, significantly intoxicated. They engaged in sexual activity, during which the complainant either fell asleep or lost consciousness. The defendant testified that he received affirmative consent prior to engagement, and the complainant agreed that he had asked her on two occasions if she wished to have sex, but her memory failed her on the specifics of their conversation.

[14] In my view, JB is distinguishable from the present facts. The defendant’s testimony regarding the complainant being “an active and willing participant in sexual intercourse”, and the accepted evidence that he inquired about the complainant’s consent on two occasions prior to sexual activity are evidentiary details absent from this trial. The present facts, in my view, more closely resemble the circumstances in R. v. Cornejo, 68 OR (3d) 117 (CA).

[15] Mr. Cornejo and the complainant were co-workers who had spent the day at a company golf tournament. Both had consumed alcohol. Late that evening, Mr. Cornejo called the complainant and asked if he could come over, for which he received an ambiguous response. Mr. Cornejo, however, viewed it as affirmative and attended her apartment. Finding the door unlocked, he entered and found the complainant sleeping on her couch. She had consumed considerable alcohol that day and was “very drunk”.

[16] Mr. Cornejo testified that he kissed the complainant on the mouth, and she said, “no, not on the mouth”. He then kissed her on the neck and pulled off her blanket. She did not touch him in return but continued to lay on the couch with her eyes closed. He pulled her jeans and underwear off and testified that she lifted her pelvis each time, as if to facilitate the removal of her clothes. It was on this basis that the trial judge permitted honest but mistaken belief in consent to go to the jury.

[17] Once her underwear was removed, Mr. Cornejo began to attempt intercourse, but the complainant said “no” and, ultimately, ordered him out of her home. He was subsequently charged with sexual assault but acquitted at trial.

[18] The Court of Appeal ordered a new trial on the basis that the judge erred in permitting the mistake defence to go to the jury. At paragraphs 15 through 18, the Court explained as follows:

In my view, based on Mr. Cornejo's own testimony, the evidence points to an absence of consent on the complainant's part and a giant leap of imagination on his. The lifting of her pelvis by a woman who has been drinking, is asleep, and, as Mr. Cornejo well knew, is totally uninterested in any kind of intimate relationship, cannot give rise to an assumption that the woman is consenting to sexual activity. In these circumstances, I cannot, with respect, see any air of reality to Mr. Cornejo's assertion that he honestly believed the complainant was consenting to his presence in her apartment, let alone to the sexual activity he engaged in with her there.

The facts do not provide an evidentiary foundation for the assertion that when Mr. Cornejo commenced sexual activity with the complainant, he believed she was consenting. After entering a person's home, late at night without permission, an individual cannot commence sexual activity with a person who has been drinking and was asleep, and then rely on the mistake defence solely on the basis that at one point late in the encounter, the woman moved her body. The trial judge failed to make reference to any facts other than the movement of the complainant's body after the sexual activity had begun. In these circumstances, the movement of the complainant's pelvis was simply an insufficient basis to allow the defence to go [to] the jury. [emphasis added]

[19] In my view, many of the same factual characteristics are at play in the present case. In this trial, honest but mistaken belief could only arise for consideration if the jury had already concluded that the defendant sexually touched the complainant without her consent. Taking the available evidence at the highest, the defendant has lured a drunken stranger to his home on false pretenses, began kissing and fondling her while she slept, and then relied upon an assumption that she was enjoying that activity – without actually asking her if she was, or if she wanted him to continue – as license to insert his penis into her vagina. And then, upon being confronted about the intrusion, drops her off at her car and lies about his identity before driving away. With respect, to extend the availability of a mistake of fact defence to such circumstances would be bad policy.

[20] In conclusion, I am not satisfied the air of reality test has been satisfied in this case. I adopt, once again, Watt, JA’s language in Sanclemente, at paragraphs 98-99, which supports the prosecution’s submission regarding flawed ‘twin myth’ reasoning:

In this case, there was no evidence to satisfy the air of reality standard in relation to the reasonable steps requirement. M.C. testified that she said “no” to the appellant’s sexual demands. But he proceeded nonetheless, repeating his demands in a “barking” tone. The appellant claimed that M.C. was an active participant who initiated much, if not most, of the sexual activity. Nothing was said as the activity progressed through its various stages.

In addition, the appellant’s claim of honest but mistaken belief in communicated consent is flawed because it appears grounded, in some respects at least, on impermissible mistakes of law, not permissible mistakes of fact. An assumption of implied consent based on the appellant’s evidence that M.C. never said “no”, thus impliedly consented to any and all sexual activity. A failure to consider that M.C.’s consent had to be contemporaneous and activity-specific, not an agreement to all activity of an undefined scope. [emphasis added]

IV. Disposition

[21] The jury will not be charged to consider honest but mistaken belief in consent.

Released: January 31, 2025

[^1]: I appreciate that honest but mistaken belief in consent is not an affirmative defence, but rather a “negation of guilty intention”: R. v. Ewanchuk, paras 43-44.