R v Barton, 2024 ABCA 34
[137] Just as section 265(3) of the Code – which sets out circumstances where no consent is obtained for assaults generally – did not prevent the Supreme Court in Jobidon from finding common law vitiation for fist fights resulting in bodily harm, section 273.1(2) does not rule out vitiation for sexual activity that results in bodily harm.
[140] First, the appellant’s interpretation is not consistent with the wording of subsection (3). Subsection (2) lists circumstances where “no consent is obtained”, and subsection (3) states that “[n]othing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained”. Read in their grammatical and ordinary sense, the words of subsection (3) plainly state that the list in subsection (2) is non-exhaustive and is not intended to limit the circumstances where legally valid consent is not obtained. This reading is consistent with the French wording. On the offence date, the French version of section 273.1(3) read, “Le paragraphe (2) n’a pas pour effet de limiter les circonstances dans lesquelles le consentement ne peut se déduire.” Today it reads, “Le paragraphe (2) n’a pas pour effet de limiter les circonstances dans lesquelles il n’y a pas de consentement de la part du plaignant.” Despite the variations in wording, the meaning of all three versions is that subsection (2) does not limit the circumstances in which a court may find there was no legally valid consent. What the appellant asks this Court to do is exactly what subsection (3) says is not to be done: to construe subsection (2) as limiting the circumstances in which no consent is obtained.
[141] Second, while most paragraphs of section 273.1(2) articulate circumstances where there is no voluntary agreement, paragraph (c) defines a circumstance where apparent consent is vitiated: Kirkpatrick at paras 32, 34, 35. This supports interpreting subsection (3) as applying to any circumstances, including vitiation, where apparent consent will be legally ineffective.
[142] Third, as set out above, vitiation of apparent consent to sexual activity that results in bodily harm is not new. Had Parliament intended to oust this aspect of the criminal law, it would have said something more than “[n]othing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained”.
[143] Ultimately, “Section 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”: JA at para 29.
C. Analysis – Threshold for vitiation
[145] To establish the actus reus of sexual assault, the Crown must prove: (i) a touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. To establish mens rea, the Crown must show that: (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was wilfully blind or reckless to the absence of consent: GF at para 25, and cases cited therein.
[146] “Consent” means a legally effective consent, and the accused’s belief in consent must be a belief in a legally effective consent: GF at para 33; Barton SCC at paras 95–100; R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 51 [Ewanchuk]. An accused’s mistake about “‘what counts as consent’ from a legal perspective” will not constitute a defence to a charge of sexual assault: Barton SCC at para 96. For example, “a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact”: Barton SCC at para 99. The same result applies to all circumstances in which an accused believed he had the complainant’s subjective consent, but that consent was not legally effective. The two components of mens rea for sexual assault can be more precisely stated as: (i) an intentional touching while (ii) knowing of, or being wilfully blind or reckless to, the absence of a legally effective consent.
[147] The vitiation question asks: assuming the complainant subjectively consented, is that consent legally effective?
[148] To answer that question, we begin with a review of the history of vitiation at common law. Next, we will address the policy-based approach to vitiation as applied by the Supreme Court of Canada. We will explore the key policy interests of individual autonomy and criminal law principles. After balancing these interests, we conclude vitiation of apparent consent to sexual activity is warranted where:
i. the sexual activity causes significant bodily harm, meaning any hurt or injury that interferes in a substantial way with the integrity, health, or well-being of a person, but excluding injuries such as a cut or bruise that would normally heal within a few days; and
ii. the accused intentionally touched the complainant:
a. intending to cause significant bodily harm, or being wilfully blind or reckless to causing significant bodily harm, or
b. in such a way that significant bodily harm was an objectively foreseeable result.
Vitiation at common law
[149] Whether apparent “consent will not be legally effective is ultimately a matter of policy”, and that policy can derive from the common law: GF at para 34. The jurisprudence has consistently shown that apparent consent may be vitiated where an intentional act of a sexual nature causes bodily harm. The precise contours of vitiation have not been authoritatively determined: JA at para 75 (per Fish J in dissent). In early cases, the minimum threshold for vitiation was defined by the nature of the act – specifically, whether it was likely to cause bodily harm. More recently, some courts have added a requirement that the accused have some level of intention to bring about the harm. As a result, there are disparities in the law on whether, for apparent consent to be vitiated, it is enough that the act be one that by its nature is likely or objectively foreseeable to cause harm, or whether a mental state must accompany the harmful consequence of the act – be it actual intention, wilful blindness, or recklessness.
[150] Actual intention has been said to connote “actual desire, end, purpose, aim, objective or design”: Don Stuart, Canadian Criminal Law, 8th ed (Toronto: Thomson Reuters, 2020) at 252. Knowledge that something is substantially certain to result may be equated with intent: R v Chartrand, 1994 CanLII 53 (SCC), [1994] 2 SCR 864 at 889–90, citing R v Buzzanga and Durocher (1979), 49 CCC (2d) 369 at 384–85, 1979 CanLII 1927 (ONCA). An accused is wilfully blind where his suspicion is aroused to the point where he sees the need for further inquiries, but deliberately chooses not to make them: R v Morrison, 2019 SCC 15 at para 98 [Morrison]; R v Briscoe, 2010 SCC 13 at paras 21, 23. An accused is reckless where he is aware of a risk that his conduct could bring about the prohibited consequence and persists despite that risk: R v Zora, 2020 SCC 14 at para 117 [Zora]; Morrison at para 100; Sansregret v The Queen, 1985 CanLII 79 (SCC), [1985] 1 SCR 570 at 584. Objective foreseeability is not concerned with what was actually in the accused’s mind, but instead focuses on what the reasonable person would have appreciated: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3 at 41, 58–59 [Creighton].
[153] The Supreme Court’s decision in Jobidon is Canada’s leading authority on common law vitiation of consent in the fist fight context. It noted the test from the English decision Attorney General’s Reference (No 6 of 1980), [1981] 2 All ER 1057 (UKCA) [Attorney General’s Reference] was whether “bodily harm is intended and/or caused” [emphasis in original]: Jobidon at 760. It specified that any test in Canada “which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused” [emphasis in original]: Jobidon at 760. Ultimately, the Court concluded the law “vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl” [emphasis in original] without specifying a mental element beyond the intention to apply force: Jobidon at 766. It was found as fact in Jobidon that the accused had intended to cause bodily harm, so no analysis of alternate criteria for vitiation was necessary: Jobidon at 749.
[154] In obiter, the Court said its judgment would not affect “freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.” By contrast, “very violent forms of forces which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent”. This framing suggests an objective approach at least for the sports context: Jobidon at 766-67.
[155] In Welch, the Ontario Court of Appeal considered the application of Jobidon to sexual assault. The complainant alleged the accused had beaten her with a belt and inserted an object into her rectum, causing bleeding. The trial judge instructed the jury, “consent is no answer to a charge of sexual assault causing bodily harm when actual bodily harm is objectively foreseeable and caused” [emphasis added]. The Ontario Court of Appeal reviewed the caselaw, including Donovan, Boyea, and Jobidon, and upheld the instruction. It concluded that when a sexual act “involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm”, individual freedom and autonomy must yield to “more compelling societal interests”. Welch endorsed an objective standard with respect to the foreseeability of bodily harm: Barton ABCA at para 304 and footnote 138.
[156] Welch was followed in R v Robinson (2001), 2001 CanLII 24059 (ON CA), 53 OR (3d) 448 (CA) at para 62 [Robinson], and Atagootak at paras 2–3.
[157] The Supreme Court of Canada revisited the law of vitiation in the fist fight context in R v Paice, 2005 SCC 22 [Paice]. The trial judge had improperly stated that consent would be vitiated by either an intention to cause serious bodily harm or an actual causing of such harm: Paice at paras 13–14. He appears to have drawn the wording “intended and/or caused” from the Attorney General’s Reference referred to in Jobidon at 748, 760. In Paice at para 18, the Supreme Court clarified, “Jobidon requires serious harm both intended and caused for consent to be vitiated”. Again, the question of vitiation beyond an actual intent to cause harm did not arise because the trial judge had found such an intent.
[158] In Quashie, the trial judge had instructed the jury that consent was not available as a defence if the injuries required to establish aggravated sexual assault or sexual assault causing bodily harm were proved. In effect, the charge allowed for vitiation, and therefore conviction, simply if wounds were caused. In its 2005 judgment, the Ontario Court of Appeal reviewed authorities including Welch, Robinson, and Paice and concluded the trial judge should have instructed the jury that “for bodily harm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm on the complainant and that the appellant had caused her bodily harm”: Quashie at para 57. As in Jobidon and Paice, the issue was whether both causation of harm and intention were required. The issue was not whether objective foreseeability would suffice instead of subjective intention, as the Court of Appeal held the accused had “deliberately caused the complainant bodily harm”: Quashie at para 59.
[159] In 2013 in Zhao, the Ontario Court of Appeal expressly addressed the level of intention required for vitiation in the sexual assault context. It noted Jobidon had “left unanswered” the question of intent (at para 61), but found error in the trial judge’s instruction that apparent consent was vitiated if an accused applied force that could reasonably be apprehended to cause bodily harm: at para 85. In other words, it rejected a standard of objective foreseeability for vitiation. The court felt that since Welch the jurisprudence had “signalled a shift toward a subjective standard”. On that basis, it ruled subjective intent was required: the accused needed to have “subjectively intended to cause” bodily harm for consent to be vitiated. In addition to a few of its own post-Welch decisions, the court relied on Paice for the perceived shift in jurisprudence. It emphasized Paice had clarified “that bodily harm must both be intended and caused in order for consent to be vitiated”: Zhao at paras 88–90 [emphasis in original].
[160] The Ontario Court of Appeal subsequently clarified its view that while subjective intent regarding bodily harm is required to vitiate the complainant’s apparent consent, by contrast, to establish the element of bodily harm for a charge of sexual assault causing bodily harm, having proved a lack of consent the Crown need only prove “that the risk of bodily harm was objectively foreseeable”: Nelson at paras 25–26; also R v Graham, 2019 ONCA 347 at para 23 [Graham].
[161] In Graham at paras 38–39, the Ontario Court of Appeal left open the possibility that recklessness as to bodily harm might satisfy its subjective test.
[162] Since 2013, Zhao’s subjective intention requirement has largely – but not universally – been adopted.
[163] In R v Vandermeulen, 2013 MBQB 118 [Vandermeulen] (overturned on other grounds in 2015 MBCA 84), a judge of the Manitoba Court of Queen’s Bench followed the objective approach to vitiation. The complainant alleged the accused had put his hand into her vagina several times with considerable force. She testified it felt like her insides were being ripped out. She sustained bruising and swelling to her vagina and genitals that left her in pain for weeks. The accused said the complainant had encouraged the activity. The Court cited Welch and concluded that because bodily harm was objectively foreseeable, any apparent consent would have been vitiated on the grounds of public policy: Vandermeulen at paras 101–105. See also R v Allard, 2011 BCSC 587 at para 59; R c Roy, 2010 QCCQ 7927 at paras 93–97.
[166] The Ontario Court of Appeal’s shift to a subjective test in Zhao relied heavily on the wording “intended and caused” used by the Supreme Court in Paice. We are not persuaded Paice imposed a threshold of full subjective intentionality, and so disagree that Paice is a basis for narrowing the circumstances in which apparent consent will be vitiated.
[167] As discussed, the issue in Paice was not whether a mental state other than full subjective intention might support vitiation. It was whether intention and causation of bodily harm were required, as opposed to intention or causation of bodily harm, as the trial judge had found. The word “intended” was used by the trial judge, who had adopted the language from the English Attorney General’s Reference case. Paice resolved the question of whether apparent consent could be vitiated where bodily harm was intended but not caused. It did not address the threshold for vitiation when bodily harm was caused.
[168] The language of “intention” is sometimes used as a shorthand for mens rea or mental state: R v Gunn, 1997 ABCA 35 at para 14; R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63 at 75. Criminal mens rea is generally taken to include actual intent or knowledge, wilful blindness, or recklessness, all of which are subjective tests: Don Stuart, Canadian Criminal Law, 8th ed (Toronto: Thomson Reuters, 2020) at 260–61; R v Sault Ste Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299 at 1309. Absent express wording in the Code to the contrary, subjective mens rea will generally include recklessness: Zora at para 117. Because wording to the contrary is not used in section 271 and related provisions, the mens rea for sexual assault includes recklessness as to lack of consent: Morrison at para 101. Mens rea can in some cases include objective or modified objective mental elements, even for serious crimes: R v ADH, 2013 SCC 28 at paras 56–63; Barton SCC at paras 187–88; R v Beatty, 2008 SCC 5 at para 48. The fact that the Court in Paice used the language of intention does not assist in determining the mental state required for vitiation, especially since degrees of intention were not at issue.
[169] Prior to Zhao, and arguably Quashie, the common law on vitiation in the sexual assault context in Canada allowed for vitiation based on the nature of the intentional touching: was it objectively foreseeable that bodily harm would result from the act? We are not persuaded by the reasoning set out in Zhao in support of shifting to a subjective assessment. In any event, it is questionable whether the use of the language of subjective intention in those cases was meant to depart from the standard criminal law meaning of the term by excluding wilful blindness and recklessness.
The nature of the policy-based approach to vitiation
[170] In the absence of binding authority on the minimum threshold for vitiation of apparent consent in the sexual assault context, we will turn to the policy considerations that inform the issue, as was done in Jobidon.
[171] In Jobidon, after finding “residual indeterminacy... in the recent Canadian cases” on vitiation, the majority stated, “it is useful to canvass policy considerations which exert a strong influence” on the issue: Jobidon at 762. It identified a range of policy factors that supported vitiation of consent in the fist fight context: Jobidon at 762–64. It provided that limits on the effectiveness of consent in other contexts were to be “developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it”: Jobidon at 766.
Individual autonomy and sexual freedom
[172] “Policy-based limits [on consent] are almost always the product of a balancing of individual autonomy (the freedom to choose to have force intentionally applied to oneself) and some larger societal interest”: Jobidon at 744. We therefore begin our review of applicable policy considerations by considering individual autonomy and, in particular, the freedom to have force intentionally applied to oneself in the sexual context.
[174] We agree that individual autonomy and sexual freedom are of social utility and are central to the policy analysis. We accept as a starting point that consensual “[s]exual activity is a positive source of human expression, fulfilment and pleasure”: R v Labaye, 2005 SCC 80 para 48.
[175] Some people enjoy a diverse range of high-risk sexual activities. Such practices are often referred to as BDSM (bondage, discipline or domination, sadism or submission, and masochism). BDSM practitioners explore boundaries of physical sensation and power relationships. Of necessity, BDSM communities generally subscribe to strong ethical constraints which are commonly summarized as “safe, sane and consensual”. Detailed discussion is encouraged, to maximize each party’s pleasure while respecting their limits, and to ensure a mutual understanding of how consent will be communicated: Monica Pa, “Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex” (2001) 11:1 Tex J Women & L 51 at 58–59, 61, 77–78; David Tanovich, “Criminalizing Sex at the Margins” (2010) 74 CR (6th) 86; Morgan Schumann, “Pain, Please: Consent to Sadomasochistic Conduct” (2018) 2018:3 U Ill L Rev 1177 at 1179, 1183–84. Like any other consensual sexual activity, consensual BDSM activity has social utility.
[176] In the criminal courts, aggressive or high-risk sexual activity is often referred to as “rough sex” and has given rise to the so-called “rough sex defence”.
[177] First, we wish to clarify the term “rough sex”. It can conjure the image of a block of sexual activity, suggesting the possibility for generalized consent to any act that may take place. To be perfectly clear, any such perception is wrong. “Rough sex” is not one activity, and it is not one indivisible act. It does not necessarily mean rape fantasy and it does not oust legal requirements for consent in any way. It does not open the door to advance or blanket consent to any sexual act or set of sexual acts; as always, the law requires contemporaneous consent to each and every act in a sexual encounter: Kirkpatrick at para 53; JA at para 31. Participants always retain the right to change their minds and modify or revoke consent. Past participation in “rough sex” provides no greater or lesser reason to infer present consent; again, legal rules applicable to other sexual activity apply without modification. Equally, there is no change to the law governing the defence of belief in affirmatively communicated consent to each sexual act.
[178] In performing a policy balancing, it is also important to understand the circumstances in which the “rough sex defence” comes before the criminal courts. Professor Elizabeth Sheehy et al identified 93 reported decisions between 1988 and 2021 where the “rough sex defence” was invoked in some form: Elizabeth Sheehy, Isabel Grant & Lise Gotell, “Resurrecting ‘She Asked for It’: The Rough Sex Defence in Canada” (2023) 60:3 Alta L Rev 651. In every case, the accused was male. Out of 97 complainants, 94 were female. Ten cases involved culpable homicides. Nine of the 11 victims in those cases were female, including three who were in the sex trade (one of the victims was Ms Gladue). All but one of the accused men claimed their victims had died due to “a sex game gone wrong”. Sheehy et al concluded “it is only men committing these crimes and overwhelmingly women who are on the losing end of rough sex”, making the “rough sex defence... a problem of male violence against women”: Sheehy et al at 665; see also Susan Edwards, “Consent and the ‘Rough Sex’ Defence in Rape, Murder, Manslaughter and Gross Negligence” (2020) 84:4 J Crim L 293 for research on the same problem in the United Kingdom.
[179] Professor Sheehy’s empirical study does not support the notion that sexual assault prosecutions arise from “rough sex games gone wrong”. In the overwhelming majority of cases studied, the complainants did not claim to have consented to a sexual act that caused expected or unexpected harm; rather, most “complainants assert[ed] that they did not consent to any sexual contact at all”: Sheehy et al at 684. This is helpful context when considering claims that vitiation of consent to sexually caused harm would impose intolerable restrictions on sexual freedom.
[180] It is open to adults to seek sexual experiences without judgment. Where choices are safe, sane, and genuinely consensual, mingling sensations of pain and pleasure does not give rise to policy concerns. Therefore, we reject any suggestion made in cases like Welch and Robinson that the intention to inflict pain might be a relevant threshold for vitiation.
[181] Instead, in keeping with Jobidon, Paice, and other precedents, we focus on harm actually caused. To allow for some scope of experience, we reject setting a low threshold that would capture minor bruises, scratches, or superficial wounds that heal in a few days without medical intervention. However, there is a point at which the societal interests in preventing bodily harm and protecting the vulnerable from exploitation take precedence over individual autonomy. That point is where the consequences of the sexual experience become significant, long-lasting, or permanent.
[182] We adopt the trial judge’s definition of the physical threshold at which vitiation of apparent consent to sexual activity will operate: any hurt or injury that interferes in a substantial way with the integrity, health, or well-being of a person, which does not include injuries such as a cut or bruise that would normally heal within a few days.
[183] We will use the term “significant bodily harm” to denote this threshold, and to distinguish it from “bodily harm” as defined in section 2 of the Criminal Code. Section 2 “bodily harm” is a “low threshold” that has been held to capture “indisputably minor injuries”: R v Bulldog, 2015 ABCA 251 at para 44; see also R v Chahal, 2023 ABCJ 105 at paras 7–11. Even the least risky sexual activity can result in minor marks or scratches; consent in such cases should not be vitiated. Absent legally effective consent, the section 2 definition of bodily harm applies.
[184] Ultimately, we agree with the appellant that individual autonomy, and its expression in the form of sexual freedom, is of great importance. However, autonomy “is not the only value which our law seeks to protect”: Jobidon at 765.
[185] While our analysis of vitiation in the sexual assault context should be informed by the common law, it must conform with the policies underlying the provisions of the Criminal Code: JA at para 29. Sexual violence bears many unique features that, according to Parliament and the courts, demand unique treatment at criminal law. Therefore, we do not assume that a policy balancing in this context will lead to the same result as for fist fights or other non-sexual assaults.
[186] Since the 1980s, the law of sexual assault has been subject to statutory reforms. Parliament summarized the aims of those reforms in the preamble to An Act to amend the Criminal Code (sexual assault), SC 1992, c 38, which recognized “the unique character of the offence of sexual assault and how sexual assault and, more particularly, the fear of sexual assault affects the lives of the people of Canada”. It also articulated Parliament’s grave concern about the incidence of sexual violence and its prevalence against women and children; its intention of promoting equality rights; and its goal of encouraging reporting and prosecution “within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons”.
[187] The factual uniqueness of sexual assault has led, in certain respects, to unique treatment of these offences by Parliament and the courts.
[188] One factually distinguishing feature, particularly relative to activities like fist fights, sports, or surgeries, is that sexual activity typically occurs in private settings. Individuals are vulnerable in the moment. There is no one to intervene if harm occurs, and no independent witness if the matter goes to court. Where violent sexual activity results in one party being unable to testify, “only one person really knows what happened”, leaving the other person “open for exploitation”: JA at para 61. The victim’s only safeguard is the after-the-fact operation of the criminal law.
[189] “Rough sex” in particular can be distinguished from fist fights and sports by a lack of mutuality. In the latter contexts, the participants mutually attempt to cause (or risk causing) harm to each other, while actively protecting themselves from injury. By contrast, it seems the presumption behind risky sexual activity is often that one sexual partner will dominate the other, who does not reciprocate the risky conduct or take protective action, such that all physical risk is borne by the subordinate partner.
[190] Sexual violence is also unique because it is highly gendered. Two years after its decision in Jobidon, the Supreme Court released R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595. Justice Cory observed at 669:
It cannot be forgotten that a sexual assault is very different from other assaults. … Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women.
[191] Thirty years later, sexual offences remain prevalent, with women and girls bearing the bulk of the burden. The disproportionate impact of sexual violence on women, Indigenous people, people with disabilities, LGBT2Q+, and other vulnerable groups, is undisputed: R v Friesen, 2020 SCC 9 at paras 68, 70–73; R v Goldfinch, 2019 SCC 38 at para 37. Indeed, the Supreme Court opened its 2019 judgment in this case with the following arresting statement: “Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society”: Barton SCC at para 1.
[192] The law of sexual assault has evolved against this backdrop, with the result being that effective consent and mistaken belief in consent is found in cases of sexual assault on a more restricted basis than for other types of assaults.
[193] For example, unlike fist fights, sports, surgeries, or certain other social contexts, in sexual interactions consent cannot be implied. The choice to enter the forum does not constitute advance consent to known rules or expected conduct. Even a contract or waiver would not constitute valid advance consent: JA at paras 3, 55–57; Ewanchuk at para 31.
[194] As another example, section 273.1 of the Code provides a unique definition of consent applicable in the sexual assault context and, as discussed above, articulates an open list of circumstances in which no legally effective consent can be found. Parliament enacted this “robust definition of consent… in part because the general vitiation provision in s 265(3) for all assaults was insufficient in the specific context of sexual assault”: Kirkpatrick at para 74. It was drafted to reinforce the understanding that women have an inherent right of control over their own bodily integrity and that human dignity and equality rights demand nothing less: R v Ashlee, 2006 ABCA 244 at para 12.
[195] The general vitiation provisions in section 265(3) continue to apply to sexual offences alongside section 273.1. Section 265(3)(a) provides that no consent is obtained where the complainant submits or does not resist by reason of the application of force. Apparent consent after a forceful or harmful touch may therefore be of questionable legal validity in some circumstances. Similarly, section 273.1(2)(c) may vitiate apparent consent to sexual activity where one party assumes a position of power over the other.
[196] The defence of mistaken belief operates differently for sexual assault than for other assaults. In general, a mistaken belief regarding an actus reus element will exculpate if it is honestly held, regardless of whether that belief is reasonable: R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531 at 538 [Beaver]. For assaults, judges are required to instruct juries to consider the presence or absence of reasonable grounds for the belief in consent when determining the honesty of that belief: Criminal Code, s 265(4). For sexual assaults, the defence of mistaken belief is assessed more stringently. The belief must pertain to communicated consent: Barton SCC at paras 91–93. There must be evidence that consent was affirmatively expressed by words or conduct. A belief arising from self-induced intoxication, wilful blindness, or recklessness will not provide a defence. Nor will a belief arising from any non-consent or vitiated consent as defined in sections 265(3) and 273.1(2), or by the open-ended section 273.1(3).
[197] Further and importantly, the 1992 Code amendments added objective elements to the defence: to rely on a mistaken belief in communicated consent, an accused must have taken reasonable steps, in the circumstances known to him at the time, to ascertain the complainant was consenting to sexual activity: Criminal Code, s 273.2(b). The “threshold for satisfying the reasonable steps requirement will be elevated” in some circumstances. A higher threshold will apply where the parties are unfamiliar with each other, raising the risk of misunderstanding, miscommunication, or mistake. The threshold will be elevated as sexual activity becomes more invasive or poses greater risks to the health and safety of either party: Barton SCC at paras 108–109; see also R v GC, 2010 ONCA 451 at para 29 [GC], R v RG (1994), 1994 CanLII 8752 (BC CA), 38 CR (4th) 123 (BCCA) at para 29 [RG].
[198] Prior to the introduction of section 273.2, in R v Pappajohn, 1980 CanLII 13 (SCC), [1980] 2 SCR 120 [Pappajohn], the Supreme Court endorsed a subjective approach to the defence of mistaken belief for sexual assault. In that case the testimony of the complainant and accused differed, but it was undisputed that the incident ended with the complainant running from a house while naked, with her hands tied behind her back. The Court applied the subjective Beaver standard to mistaken belief in consent, while seeming also to allow for culpability if the belief were recklessly held. Its decision met with criticism.
[199] Writing in 1989, Professor Sheehy observed some “judicial evasion of the rule in Pappajohn in situations where it would have resulted in acquittals of manifestly violent men”. She also observed an increase in the use of the defence of honest but mistaken belief, even in cases involving such violence that one would have thought the defence would be unavailable. The result was to contort the criminal law, legitimizing coercive and violent conduct. The standard of honest, but not necessarily reasonable, belief in consent “cannot distinguish between submission, consent to male advances, and mutually desired sexual interaction, focussing as it does solely on the accused’s perception of the event.” Rather than being a neutral application of criminal law principles, the Pappajohn rule almost uniquely impacted women in a way that jeopardized their physical integrity: Elizabeth A Sheehy, “Canadian Judges and the Law of Rape: Should the Charter Insulate Bias?” (1989) 21:3 Ottawa L Rev 741 at 761–63, 767.
[204] The premise of the vitiation discussion is that the complainant apparently consented to sexual activity that resulted in significant bodily harm. It is implicit in this premise that the accused understood the scope of the complainant’s concomitant and communicated consent; if not, any such misunderstanding would be addressed as a mistaken belief in consent, not as a question of vitiation. Therefore, vitiation might apply in two situations. The first is where the complainant subjectively consented to the causation of significant bodily harm, in which case the accused will have actually intended to cause such harm. There can be little dispute that apparent consent is vitiated where significant bodily harm is actually intended. The second context for vitiation is where the complainant subjectively consented to risky activity that resulted in serious bodily harm, in which case the harm will not have been caused intentionally. Our analysis focuses on the second situation, which is where thresholds short of actual intention might apply.
[205] Physical vulnerability is inherent in a high-risk sexual encounter and is exacerbated when the activity presents a foreseeable risk of significant bodily harm. By agreeing to perform an act that could foreseeably result in such harm, the actor assumes responsibility.
[206] Across a variety of contexts, society requires those who would place others at risk of bodily harm to take great care. Surgeons must have education and credentials. Medical treatment is typically discussed in detail in advance and is subject to waivers: JA at para 55; R v Park, 1995 CanLII 104 (SCC), [1995] 2 SCR 836 at para 51. Athletes are expected to play by the rules, on a level playing field, mutually exposing each other to risk while trying to prevent risk to themselves. A person who decides to administer a dangerous drug “has a duty to inform himself as to the precise risk the injection entails and to refrain from administering it unless reasonably satisfied that there [is] no risk of harm”: Creighton at 75.
[207] To paraphrase R v Darrach, 1998 CanLII 1648 (ON CA), [1998] OJ No 397 (QL) at para 93, 38 OR (3d) 1 (ONCA), it is difficult to contemplate that a person who commits a high-risk sexual act is morally innocent if he has not taken reasonable steps to prevent significant bodily harm from occurring. Vitiating apparent consent where significant bodily harm is objectively foreseeable imposes a requirement that appropriate care be taken.
[208] A purely subjective approach to risk would leave the complainant’s health and safety solely dependent on the accused’s ability to foresee risk. This would be poor policy. The dominant party’s ability or willingness to assess risk in the moment might be impaired by “unchecked passion”: Jobidon at 762; see also R v Hancock, 2000 BCSC 1581. Complainants deserve protection from significant bodily harm, including at the hands of thoughtless partners.
[209] It is well established that objective foreseeability of bodily harm grounds a conviction for sexual assault causing bodily harm where there is no legally effective consent. Imposing a subjective threshold for this form of vitiation only would open an analytical gap: where there is subjective consent, bodily harm would have to be intended rather than merely foreseeable. The width of this gap is not justified, given the reality that the “rough sex defence” typically does not arise in cases where the complainant acknowledges her subjective consent, but in cases where that consent is a live issue.
[210] As previously noted, high-risk sexual activity carries a potential for confusion on effective consent. A forceful or harmful touch may render consent to subsequent touching of questionable legal effect. Seemingly genuine consent might be undermined in a context of dominance, submission, or physical control. Where consent is fragile, a lower threshold for vitiation of apparent consent to risk or harm is appropriate. The Supreme Court’s cautionary words in Jobidon at 764 are apt: if causing bodily harm were permissible, “aggressive individuals … may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude. It is preferable that these sorts of omissions be strongly discouraged.”
[211] A minimum threshold of objective foreseeability should lessen the impact of farfetched claims of accidental results. In R v Gonzalez-Hernandez, 2011 BCSC 392, for example, the offender acknowledged intentionally placing the victim’s nose in his mouth. He testified that he meant to “nibble” it, but “did not intend to bite her nose right off and did not even realize he had”: at para 85. See also the facts in Meachen. A purely subjective test for consequence might create confusion about the continued application of basic common law doctrines such as the common sense inference that a competent person intends the natural and probable consequences of his actions: R v Walle, 2012 SCC 41 at para 3.
[212] Interestingly, a significant number of the cases where defendants have claimed lack of subjective foresight involved the insertion into orifices of entire hands or other large objects: see, for example, Boyea; Slingsby; Meachen; Vandermeulen; and R v Broadhurst, [2019] EWCA Crim 2026 (UKCA). As noted by the “We Can’t Consent to This” campaign, “[i]t might be surprising that men claim not to have foreseen the risk of serious injury to women from intimate insertion of objects” given the numerous cases of “women killed in this way in claimed sex games gone wrong”: Fiona Mackenzie, "Consent Defences and the Criminal Justice System: Research Briefing – England and Wales" (June 2020) We Can't Consent to This at 4.1.1.1.
[213] In extreme cases, high-risk sexual activity may result in the complainant’s unconsciousness or death. In these most serious of cases, where the courts are deprived of the complainant’s perspective on, among other things, the foreseeability of risk, a subjective threshold for vitiation would reinforce rather than resolve the concern with leaving complainants’ safety solely dependant on the accused’s ability to foresee risk.
[214] As noted in Barton SCC at para 192, “neither sexual assault nor unlawful act manslaughter requires subjective intent to bring about any particular consequence.” Mens rea for unlawful act manslaughter will be established where there is “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: Creighton at 44–45. In assessing objective foreseeability for manslaughter, “personal factors are not relevant, except on the question of whether the accused possessed the necessary capacity to appreciate the risk”: Creighton at 59; R v Javanmardi, 2019 SCC 54 at para 36. We adopt the same approach.
[215] Since the “rough sex defence” is employed in a highly gendered way, we take account of the important societal interest in deterring and denouncing the infliction of harm on women and other vulnerable groups, including racialized people, people with disabilities, LGBT2Q+ individuals, and sex workers. Notably, courts have applied an objective threshold to vitiation of apparent consent in the context of domestic violence, another area where prevention of gendered harm is a pressing societal concern: R v Bruce (1995), 1995 CanLII 2442 (BC CA), 55 BCAC 62 (BCCA) at para 16; R v Ram, 2022 ONCJ 347 at paras 28–29; R v Shand (1997), 1997 CanLII 3459 (NS SC), 164 NSR (2d) 252 (NSSC) at paras 16–17.
[216] In short, “[i]f a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably”. The objective threshold maintains “a standard of conduct that is acceptable not to the subject, but to society at large”: R v Khill, 2021 SCC 37 at paras 52–56. This threshold should “delineate a risk zone for criminal sanction”, enabling prudent sexual partners to “refrain from conduct that approaches those boundaries”: Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at para 42. Harm that is truly accidental will not be objectively foreseeable and will not lead to criminal culpability.
[217] Parliament ultimately rejected pure subjective belief in consent as failing to give effect to policies underlying the Criminal Code. In our view, criminal law policy similarly augurs against a purely subjective approach to vitiation by significant bodily harm. A minimum threshold of subjective intent would mean an individual is the sole determinant of whether their partner will suffer significant bodily harm, and to some extent whether the criminal law can respond. This would be inconsistent with preventing harm, preserving the sanctity of the body, discouraging violence, enhancing equality, and the other policy aims identified above.
[218] We conclude that apparent consent to sexual activity is vitiated where significant bodily harm is caused and where the accused intentionally touched the complainant intending to cause significant bodily harm; being wilfully blind or reckless to causing significant bodily harm; or in such a way that significant bodily harm was objectively foreseeable.
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