Plus la conduite d’une plaignante sera ambiguë, plus l’activité sexuelle sera envahissante ou susceptible de présenter des risques pour la santé et la sécurité des participants, plus les mesures prises par un accusé pour s’assurer du consentement devront être élevées

R v Hay, 2022 ABCA 246 

Lien vers la décision

[10]            Section 276(1) of the Criminal Code prohibits the use of prior sexual activity where it fuels propensity reasoning. The legislative framework governing the admissibility of prior sexual activity addresses the twin myths that continue to linger in the legal landscape of sexual assault: that a complainant’s sexual experience means they are more likely to have consented to the sexual activity that forms the subject matter of the charge or are less worthy of belief: Goldfinch at paras 34-38. Section 276(2) sets out the conditions for admissibility of such evidence. The applicant must show the proposed evidence:

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: Goldfinch at para 49.

[11]           The factors that a judge must consider are set out in s 276(3) of the Criminal Code. Relevance is the key to the analytical framework. Bare assertions that the evidence will be relevant to an issue at trial or relevant to context, narrative, or credibility will not satisfy s 276: Goldfinch at para 51.

[12]           Evidence of previous sexual activity may be relevant and admissible to a defence of honest but mistaken belief in communicated consent. However, the defence cannot rest upon evidence that the complainant at “some point” consented to the sexual activity in the past. This is twin-myth reasoning: Goldfinch at para 62. Mr Hay had to show how the complainant communicated consent in the past to support his belief that the complainant expressed her consent to the specific sexual activity of anal intercourse at the time in question.

[13]           The trial judge correctly noted in her voir dire decision that mistaken belief in communicated consent will not stand if the belief is based on implied consent, broad advance consent, or propensity to consent, citing R v Barton, 2019 SCC 33 at para 97 [Barton]. Silence, passivity, or ambiguous conduct does not equate to consent and assuming they do is therefore also a mistake of law: Hay (Voir Dire) at para 50, citing R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 51 [Ewanchuk].

[14]           The trial judge also noted Moldaver J’s comments in Barton that increasingly invasive sexual activity means a reasonable person must take greater care in ascertaining consent:

For example, the more invasive the sexual activity and/or the greater risk posed to the health and safety of those involved, common sense suggests that a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, common misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case: Hay (Voir Dire) at para 53, citing Barton at para 108.

[18]           As the trial judge recognized, communicated consent must be given to every sexual act in a particular encounter. To make out the defence, Mr Hay must show “he believed that the complainant communicated consent to engage in the sexual activity in question”: Ewanchuk at para 46 [emphasis in original]. The trial judge conflated anal digital penetration with anal intercourse, an error that permeated the trial decision. These are distinct sexual acts. “[A]greement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching”: R v Hutchinson, 2014 SCC 19 at para 54.

[19]           Taking Mr Hay’s evidence at its highest, it fails to ground his argument that he believed the complainant communicated consent to engage in anal intercourse; notably absent was any evidence that Mr Hay believed the complainant had communicated consent to this specific act. At best, the evidence of previous sexual activity would have grounded his belief that the complainant might consent or was likely to consent to anal intercourse. This is not sufficient. The evidence did not meet the test for relevance and should not have been admitted or relied on by the trial judge in her subsequent decision.