La mens rea et le consentement en matière d'agression sexuelle

R. v. H.W., 2022 ONCA 15

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[42]      Central to both the actus reus and the mens rea for sexual assault is the issue of consent, “the foundational principle upon which Canada’s sexual assault laws are based”: G.F., at para. 1.

[43]      The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code, consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.” It means the conscious agreement of the complainant to “every sexual act in a particular encounter”: J.A., at para. 31. Section 273.1(2) of the Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) “authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code”: J.A., at para. 29.

[44]      Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determining whether the actus reus was committed: Barton, at para. 89.

[45]      At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26; G.F., at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.

[46]      The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused’s mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87.