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Criminal - Sexual Offences - Consent. R. v. MacMillan
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers sexual consent [CCC s.273.1-273.2]:[48] At the second stage, the trial judge concluded that the words spoken before the sexual acts in issue “are wholly irrelevant, highly prejudicial to the administration of justice, and inadmissible.” I agree.
[49] The appellants’ submission reflects a misinterpretation of consent. Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question at the time the sexual activity occurred.” As McLachlin C.J., writing for the majority, stated at para. 66 of R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, “The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity” and, at para. 53, “[T]he only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” (italics in original).
[50] Thus, consent must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57. Barton, at para. 88, makes clear that it is a mistake of law to suggest that the complainant could give broad advance consent to whatever the accused wanted to do to her. The only relevant period for ascertaining consent is while the touching is occurring.
[51] The complainant’s flirtatious behaviour at the bar is not an indicator of consent. As the trial judge said in his ruling:A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted. [52] To some extent, the appellants seek to carve out an exception for unconventional sex. They say that the complainant’s comments and prior conduct support the fact that the violence was consensual. The admission of the comments was necessary, they submit, so that the jury would know that the activity shown on the video was what she had talked about and wanted to occur.
[53] The fact that the sexual act was unconventional does not open the door to prohibited evidence. As the trial judge put it:[T]he fact that the sex a complainant ultimately engaged in is unconventional does not alter the playing field. The accused suggests that the jury’s not knowing that the complainant communicated earlier that she likes and engages in BDSM will make their claim that she later invited it from them and that they honestly believed that she was consenting to it incredible. I cannot accept this argument. As the Alberta Court of Appeal stated in R. v. Goldfinch (2018), 363 C.C.C. (3d) 406, 2018 ABCA 240 at para 40, aff’d (2019), 55 C.R. (7th) 215, 2019 SCC 38 at paras. 58-60, “admitting evidence to dispel the inference of the unlikelihood of consent is no different than introducing such evidence to support the inference of an increased likelihood of consent.” If this argument were to prevail, it would mean that women who engage in unconventional sex are less worthy of the protection of the law then other women…. [The accused’s] credibility is not enhanced by saying that the complainant told him twice that she likes and engages in BDSM. But the potential prejudice occasioned by showcasing the extent of the complainant’s unconventional sexual interests is palpable. [54] With respect to the defence of mistaken belief in consent, the focus shifts to the mental state of the accused. To make out this defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct. As Moldaver J., writing for the majority, articulated in Barton, at paras. 92-94:[I]t is appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
... [I]n seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred….
However, great care must be taken not to slip into impermissible propensity reasoning. The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. [Citations omitted. Emphasis in original.] [55] The trial judge properly excluded the evidence under s. 276.
[56] The day the trial judge released his reasons excluding the evidence, the appellants moved for a reconsideration. Although raised at several points during the trial, the trial judge’s decision did not change on reconsideration. The trial judge did not err by preventing cross-examination on the earlier communications.
[57] A suggestion that the complainant gave broad advance consent to sexual activity is not just a “dressed up” version of the twin myths, it is wrong in law. . R. v. S.B.
In R. v. S.B. (Ont CA, 2023) the Court of Appeal considered sexual consent (in split but concurring decisions, with the majority at paras 30-69):2. Legal Principles
[48] Section 273.1(1) of the Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1), and, as Karakatsanis J. stated in G.F., “there is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent or incapacity”: at para. 63. Section 273.1(2) provides that no consent is obtained in certain circumstances, including if (a.1) the complainant is unconscious; or (b) the complainant is incapable of consenting to the activity for any reason other than that they are unconscious.
[49] Being awake, although necessary, is not sufficient. Proof of intoxication or of a complainant’s lack of memory are not enough to establish lack of capacity, although evidence of both is relevant: see G.F. at para. 86; Kaczmarek at paras. 33-34; R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244 at para. 65, aff’d 2021 SCC 19, 71 C.R. (7th) 118. To have capacity to consent to a sexual act, the complainant must have an operating mind, capable of understanding (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the participants; and (4) that she has the choice to refuse to participate: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 36-37, 66; G.F., at paras. 29, 43, 47, 55-58.
[50] The Supreme Court, in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, observed that the absence of consent is subjective, and that the complainant’s evidence that they did not consent is a matter of credibility to be weighed in light of all the evidence, including the complainant’s words and actions before and during the incident, and by reference to “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: at paras. 29, 61. With respect to consent, where the complainant testifies that they did not consent, the question is one of credibility. The evidence of other witnesses, including the accused, about the “totality of the complainant’s conduct” can be considered to determine whether it is consistent with the complainant’s claim of non-consent. As the court noted in Ewanchuk, at para. 30, however “[t]he accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry”.
[51] With respect to capacity to consent, while the complainant will often provide relevant evidence, the question is not whether she subjectively believed that she had or did not have capacity, but whether, based on all the evidence, the Crown has proven lack of capacity beyond a reasonable doubt. The evidence of an accused person can be relevant both to the assessment of the complainant’s credibility, and as circumstantial evidence to be considered on the question of capacity. While the complainant’s evidence and their credibility are important, the court must consider all the relevant evidence, including as in this case, the observations of other witnesses of the complainant’s consumption of alcohol, level of intoxication and conduct, to determine whether the complainant lacked the capacity to consent when the sexual act occurred: see, for example, C.P., at paras. 56-57; Kaczmarek at paras. 40-45; and R. v. F.B.P., 2019 ONCA 157 at paras. 4-6. Although not required, in some cases there is expert evidence on the issue of capacity: see, for example, R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237.
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