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The Lawyers Weekly Newspaper

S.C.C. Defines 'Consent' in Sex Cases

By Cristin Schmitz

"The sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal."
-Justice John McClung

"According to this analysis, a man would be free from criminal responsibility for having non-consensual sexual activity whenever he cannot control his hormonal urges."
-Justice Claire L’Heureux-Dube

Ottawa - The Supreme Court of Canada has broken new ground on several fronts in the law of sexual assault.

The 9-0 February decision in R. v. Ewanchuk marks the top court’s first interpretation of the 1992 "no means no" Criminal Code amendments, which statutorily defined the central concept of "consent."

Ewanchuk makes or refines the law of sexual assault in a number of ways. The decision elaborates on the meaning of "consent," while clarifying that consent means different things in the contexts of the mens rea and the actus reus of sexual assault. Notably, the court ruled there is no defence of implied consent to sexual assault in Canadian law.

Justice Jack Major’s judgment also makes some significant new statements about the "defence" of honest but mistaken belief.

The judgment states, for the first time, that an accused can successfully assert his honest but mistaken belief in consent only if evidence demonstrates that the accused believed the complainant affirmatively communicated, through her words and/or actions, her agreement to engage in sexual activity.

The accused’s own speculation as to what was going on in the complainant’s mind provides no defence. More importantly, "a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence," the court said.

Also novel is the court’s assertion that a complainant’s fear of physical harm "need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated."

As well, the court made it clear that "No" means "No"-whether expressed before or during sexual contact.

Specifically, if at any point the complainant has expressed a lack of agreement to engage in sexual activity, the accused must make sure she has truly changed her mind before initiating further sexual contact.

An accused cannot say that he thought "no meant yes." Once one person says "no" during sexual activity, the other person must obtain an "unequivocal yes"-by word and/or actions-before resuming sexual touching.

"The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to ‘test the waters,’" Justice Major wrote.

"Continuing sexual contact after someone has said ‘No’ is, at a minimum, reckless conduct which is not excusable."

R. v. Ewanchuk is just the first of three important sexual assault cases the court will decide in 1999. Still to come are two constitutional challenges by accused: R. v. Darrach, an Ontario appeal likely to be heard this spring, which challenges the 1992 "rape shield" amendments prohibiting examination of a complainant’s sexual history, and R. v. Mills, an Alberta appeal argued last January, which attacks the latest Criminal Code restrictions on the production of complainants’ private records.

Ewanchuk makes new law in several areas:

Implied consent

There is no defence of "implied consent," also known as "consent by conduct." A person either consents or not. "There is no third option," Justice Major explained. "If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established."

Consent

The concept of "consent" differs, depending upon whether one is looking at the actus reus or mens rea of sexual assault. Consent must be analyzed separately in these two contexts.

The actus reus of sexual assault is non-consensual sexual touching. When dealing with consent under the actus reus, the sole focus is the subjective state of mind of the complainant: Did she, in her own mind, agree to the sexual touching? The accused’s perception of the complainant’s state of mind is not relevant under the actus reus analysis.

However, the complainant’s testimony that she did not consent will be assessed by the judge or jury in light of all of the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

To be legally effective, the complainant’s agreement to sexual activity must be freely given. If the complainant permits, or participates in, sexual activity as a result of an honestly held fear that she will otherwise suffer physical violence, there is no consent.

"While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective," the judgment says.

The accused’s state of mind becomes the focus when analyzing mens rea - specifically for the purposes of the defence of honest but mistaken belief.

The mens rea of sexual assault is the intention to touch, and knowing of, or being reckless or willfully blind to, the complainant’s lack of consent.

In the context of mens rea, "consent" means that the accused honestly believed that the complainant affirmatively communicated, by words and/or actions, her agreement to engage in sexual activity with the accused.

"A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence."

An accused cannot rely on his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact.

(Reasons in R. v. Ewanchuk, 1842-004, 63 pp. are available from FULL TEXT.)

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