R. v. H.W., 2022 ONCA 15
[47] “[T]he common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant”: Ewanchuk, at para. 42. The defence is a “negation of guilty intention”, rather than an affirmative defence – it is a “denial of mens rea”: Ewanchuk, at paras. 43-44.
[48] The defence requires that the accused had “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton, at para. 91 (emphasis in original). From a practical standpoint, the principal relevant considerations are the complainant’s behaviour which is said to have involved communication and the “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 44 (emphasis in original); Barton, at para. 91.
[49] The defence is limited both by the common law and by provisions of the Code that tightly restrict “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent”: G.F., at para. 1; J.A., at para. 24. As a result, “[n]ot all beliefs upon which an accused might rely will exculpate him”: Ewanchuk, at para. 50.
[50] For example, mistakes as to what amounts in law to consent – for example, a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton, at paras. 98-100.
[51] Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence. It provides that a belief in consent that arose in certain ways will be unavailing. It imposes a precondition of reasonable steps to ascertain consent – “no reasonable steps, no defence”: Barton, at para. 104. And it requires evidence of words or conduct by which the complainant expressed consent. Section 273.2 provides:
It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
[52] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to it. If there is no air of reality to the defence, it is not left with the jury. If there is, the onus is on the Crown to negative the defence. If the Crown fails to do so, the accused is entitled to an acquittal. The Crown might disprove the defence by, for example, proving beyond a reasonable doubt that the accused did not take reasonable steps to determine whether the complainant was consenting or that the accused’s mistaken belief was not honestly held: Barton, at paras. 121-23.
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