{"id":13260,"date":"2021-02-01T11:11:51","date_gmt":"2021-02-01T16:11:51","guid":{"rendered":"https:\/\/www.nrlawyers.com\/chinese\/?p=13260"},"modified":"2021-02-01T11:11:51","modified_gmt":"2021-02-01T16:11:51","slug":"reasonable-steps-and-sexual-consent","status":"publish","type":"post","link":"https:\/\/www.nrlawyers.com\/chinese\/reasonable-steps-and-sexual-consent\/","title":{"rendered":"Reasonable Steps and Sexual Consent"},"content":{"rendered":"

Joseph A. Neuberger<\/strong><\/p>\n

Neuberger & Partners LLP<\/strong><\/p>\n

Criminal Defence Lawyers<\/strong><\/p>\n

In a number of recent sexual assault cases, trial judges have been asked to find an accused guilty based on his own evidence. The Crown argument has been that, by the accused\u2019s own testimony, they failed to take reasonable steps to obtain affirmative consent prior to engaging in a sexual act.<\/p>\n

In R. v. M.F.<\/em>, 2020 ONSC 5061 Justice Varpio articulated the submission as such:<\/p>\n

\u201cIn the alternative, the Crown submitted that the accused\u2019s own evidence is effectively a confession that a sexual assault occurred on the night of March 17\/18, 2018.\u00a0 I should convict him as a result of same.\u00a0 The Crown further submitted that the accused\u2019s testimony that the complainant said nothing prior to sexual activity on the night of March 17, 2018 corroborates that she did not, in fact, consent.\u201d<\/p>\n

Justice Varpio goes on to outline the guiding case law from the Supreme Court on consent, pointing out that, based on Ewanchuk<\/em>, \u201cThe complainant\u2019s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct\u201d and that if the trial judge finds the Crown has not proven non-consent then the reasonable steps question is not engaged.<\/p>\n

In a section titled \u201cConsent as Elements of the Actus Reus<\/em> and Mens Rea<\/em>: Do They Affect One Another in Sexual Assault Cases?\u201d Justice Varpio adopts the reasoning of the Court Martial Appeal Court in finding that \u201cthe actus reus<\/em> and mens rea<\/em> elements of sexual assault are discrete inquiries such that a defence of honest but mistaken belief in communicated consent that has no air of reality does not, by itself, prove the \u201clack of consent\u201d element of the actus reus<\/em>.\u201d<\/p>\n

Put another way, M.F.<\/em> clarifies that \u201cas per Barton<\/em>, the Crown must prove the lack of consent requirement of the actus reus<\/em>, irrespective of the mens rea<\/em> requirements.\u201d A failure by the accused to take reasonable steps to confirm consent does not undermine a finding that the complainant may have consented.<\/p>\n

Though this failure will be fatal to a claim of honest but mistaken belief in consent, the trial judge will only move to that analysis if the Crown first proves non-consent.<\/p>\n

In another, earlier case, R. v. Solomon<\/em>, 2020 ONSC 2640, the Crown had appealed on a similar issue. While the Crown argued on appeal that the trial judge in Solomon<\/em> had made a finding that the complainant consented on two occasions, Justice Copeland corrected that interpretation to state the trial judge had \u201cfound that the Crown had not proven non-consent beyond a reasonable doubt.\u201d<\/p>\n

One section in the Solomon<\/em> ruling was titled \u201cDid the Trial Judge err in not finding that the events on the couch constituted a sexual assault, even on the respondent\u2019s evidence?\u201d<\/p>\n

Ultimately, Justice Copeland found that the trial judge\u2019s reasons as a whole explained how he reached the conclusion that there was consent. \u201cThe discussion in Ewanchuk<\/em> about not \u2018testing the waters\u2019 is clear that it does not displace the law that consent can be conveyed by words or gestures.\u201d<\/p>\n

In both decisions, Ewanchuk<\/em> was cited as the current guideline regarding the evaluation of consent or non-consent and that no subsequent ruling has altered the requirement that the Crown must prove non-consent before engaging the reasonable steps question.<\/p>\n

The addition of \u201ccommunicated consent\u201d to the judicial lexicon did not change the law to require verbal consent. Nor has the complainant\u2019s evidence been excluded from the required credibility assessments.<\/p>\n

A finding of consent or reasonable doubt about consent resolves the primary question at trial.<\/p>\n

As one Alberta judge recently stated in R. v. K.G.Y.<\/em>, 2020 ABPC 227: \u201cIf a person is agreeing in their mind that an act is acceptable, absence of spoken or physical demonstration of that consent would not turn the action illegal.\u201d<\/p>\n

Subscribe to the monthly newsletter<\/a> to get early notification of other recent decisions affecting the law in sexual assault cases.<\/p>\n","protected":false},"excerpt":{"rendered":"

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers In a number of recent sexual assault cases, trial judges have been asked to find an accused guilty based on his own evidence. The Crown argument has been that, by the accused\u2019s own testimony, they failed to take reasonable steps to obtain affirmative consent prior […]<\/p>\n","protected":false},"author":1,"featured_media":13261,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-13260","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-sexual-assault"],"_links":{"self":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/13260","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/comments?post=13260"}],"version-history":[{"count":0,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/13260\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media\/13261"}],"wp:attachment":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media?parent=13260"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/categories?post=13260"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/tags?post=13260"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}