Don’t Forget about Consent

Don’t Forget about Consent

[1]          In R. v. Foster 2020 NBCA 2020 the court overturned a sexual assault conviction because the trial judge failed to put his mind properly to the issue of whether the Crown had proven beyond a reasonable doubt whether the complainant had in fact not consented to the sexual activity at issue.

[2]          The trial judge conflated the issues of reasonable mistake of communicated consent (a mens rea issue) with the proof of lack of consent (an actus reas issue).

[3]          At para 24 the court summarizes what must be proved:

•               That the accused touched the complainant directly or indirectly;

•               That the touching by the accused was intentional;

•               That the touching by the accused took place in circumstances of a sexual nature;

•               That the complainant did not consent to the sexual activity in question; and

•               That the accused knew that the complainant did not consent to the sexual activity in question.

[4]          With regard to the actus reus the court reminds us at para 26 that:

The actus reus of sexual assault is established by the proof of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first two of these elements are objective. The absence of consent, however, is subjective and determined 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, [1999] S.C.J. No. 10 (QL), at paras. 25-26. The last element – the accused’s knowledge of the complainant’s lack of consent – deals with the mens rea of the offence, and this is where the defence of mistaken belief in communicated consent comes in.[emphasis added]

[5]         However lack of consent is not necessarily proven by the complainant simply saying “I did not consent to the sexual touching”.  Often in a criminal trial we hear Crown counsel put to  the complainant the question “did you consent to this touching?”. Their answer is not dispositive of the issue. Rather, and this is important, an assessment of the totality of all the evidence in required. At para 41 and 44 of Foster:

A complainant may say she did not consent; however, the trier of fact must decide beyond a reasonable doubt that this is true. At this stage the question is purely one of credibility, which must be assessed by the trial judge in light of all available evidence, including the complainant’s conduct before and during the sexual activity in question, any words or gestures, evidence of any ambiguous or contradictory conduct by the complainant, and any other indication of the complainant’s state of mind at the time. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly conduct may contradict her claim, the absence of consent is established and the third component of the actus reus of sexual assault is proved. At this point, the actus reus is complete.

At the actus reus stage, the issue is: did the complainant consent? If there is a reasonable doubt that she did, the case is over. The complainant’s state of mind must be proved beyond a reasonable doubt, and the court must look at all available evidence, including the accused’s evidence of what the complainant was doing at the time. If the trial judge believes the complainant’s assertions that she did not consent, the Crown has discharged its obligation to prove the absence of consent. On the other hand, if the trial judge has any reasonable doubt with respect to the complainant’s claim that she did not consent, he or she is simply applying the burden of proof to the actus reus and must find the accused not guilty. [emphasis added]

Conclusion

[6]          Counsel should be alive to all relevant issues and factors that may tend to cast a doubt on the complainant’s assertion that he or she did not consent at the relevant time. Saying “I didn’t consent” is only one factor to consider and must be assessed on the totality of the evidence, including the accused’s evidence.

[7]          Foster even goes further and suggests that post allegation conduct may become relevant. At para 66:

In R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (QL), the Court had to determine whether evidence related to the relationship between the parties following an alleged sexual assault was relevant. Doherty J.A., writing for the Court, held that evidence, although not determinative of whether an assault occurred, can be relevant in deciding whether the Crown had proved beyond a reasonable doubt that the incident described by the complainant (i.e. forced sexual activity) had in fact occurred. He wrote:

 I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react             differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant. Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.). This evidence was relevant. [para. 89]