Very little touching upon Pappajohn "air of reality".
Ladue (1965), 4 C.C.C. 264 (Y.T.C.A.)
Accused charged with interfering with a dead body, had intercourse with dead woman. He claimed he didn't know she was dead. Crime designed to protect grave robbing or disrespect to a dead body. He was charged (could have been charged with attempted rape). Defence was mistaken belief that she was alive, which negates mens rea for interfering with a dead body. Here, the accused possessed the mens rea for the more serious crime of attempted rape, but committed the actus reus for the less serious crime of interfering with a dead body. Pretty much said, "you've charged me with the wrong crime, I had mens rea for rape." C.A. said the accused's mind was not innocent. This is considered the innocent mistake of fact doctrine.
Kundeus,  2 S.C.R. 272
The accused sold LSD and told people he was offering mescaline. Charged with trafficking LSD. His defence was mistake of fact. This is the reverse of Ladue: the accused possessed the mens rea for the lesser offence but committed the actus reus of the more serious crime. SCC said this doesn't matter, mistake of fact unsatisfactory defence, that on facts, not possible that the accused held an honest belief. Said it is presumed that the person intends the natural consequences of his act. (Sklar: This is bad criminal law reasoning…this presumption.)
Laskin J., in his dissent, gets into the real issue: whether mens rea for a less serious crime should excuse the actus reus for a more serious crime.
Sklar: He writes his dissent as if the majority of the Court decided the case on the right issue.
One officer had told some of his officer buddies to go and have a good time with his wife, and not to worry if she put up a fight because that means she likes it. So a group of soldiers went to this officer's house and started raping this woman, and sure enough she protested and screamed and tried to fight them off. The accuseds claimed mistake of fact as their defence (mistaking her protests for consent). The House of Lords convicted the officers because the facts were not believable, but said that had they believed the story, it would have been a good defence. The victim's husband was also convicted of aiding and abetting a rape.
Pappajohn,  2 S.C.R. 120
Mistake does not have to be reasonable to excuse; even an unreasonable mistake will excuse. However, here the majority said there was no "air of reality". On these facts, there was no evidence to show that the victim was consenting. According to McIntyre J. this is a case of "he said, she said" and it should be up to a jury to decide which party to believe.
Dickson J. (dissenting) says that a viable defence of mistaken belief is actually a negation of the mens rea (this clearly means Crown must prove beyond reasonable doubt that the accused has the requisite mens rea). The Crown has to show that the victim did not consent, and that the accused possessed the requisite mens rea.
What about the idea that Dickson J. should have analyzed this under recklessness? That (unreasonable) reckless mistakes bring about culpability? Should we stretch the notion of recklessness to include people like Sansregret and Pappajohn? In a sense, what Dickson J. is saying is the accused's mind is innocent if he actually believed the victim was consenting.
Now, the accused has to have taken reasonable steps to ascertain the victim's consent.
Is Dickson J. right or wrong when he says the defence of mistaken belief should not have been put to the jury? Here, there are too many questions with respect to the complainant's behavior (folded clothes, keys and jewelry in the living room are good evidence that she consented).
This decision was overturned by s.273.2(b)…see Malcolm decision for a good analysis.
Sansregret,  1 S.C.R. 570
Prof. Sklar's view of Sansregret is that it's a classic case of unreasonable mistake made with respect to the consent of the complainant, and the Court incorrectly applied willful blindness.
The trial judge said the accused believed that the complainant wanted to have sex with him. The accused had broken into the complainant's home twice. The first time, he threatened her with a knife, spoke words of violence, and to save her life she talked him down and in a calm atmosphere they had sex. The second time the accused was even more violent. These facts exhibit a person of a very peculiar, antisocial and misogynistic mindset. This is a classic case of unreasonable mistake. He honestly believed she was having sex with him because she loved him, not because she feared for her life. In reality, she was scared of him. This is an issue of consent vs. no consent in the mind of the complainant.
Here, the trial judge might have been wrong with respect to willful blindness, but SCC cannot intervene on questions of fact. The trial judge here found that no one in his right mind could have believed the complainant was having sex with him out of love, but the accused did. The trial judge used willful blindness in a non-legal sense. It is for the trier of fact to decide whether the accused closed his eyes to something he almost knows.
This is one of the cases leading up to s.273.2(b) because this is a case where he should have been convicted. Unfortunately, while Sansregret is not the kind of man you want your daughter to go out with, he was found not guilty under the terms of Pappajohn (as they then were).
Discussion: Think Lavallee: Constant battery on a woman would dethrone her reasonable state of mind. A battery situation could eliminate an otherwise valid consent from the complainant's point of view, but it would not affect his state of mind. In Sansregret, the accused's tunnel vision, his inability to conceive of the complainant's rejecting him, was deemed (under Pappajohn) to just indicate an antisocial mindset. Therefore, Parliament amended the Code with s.273.2(b) to catch subsequent cases in this vein.
What about Barron (1984)? Some teenaged boys were getting ready to streak at a party. The accused pushed his friend and accidentally knocked him down the stairs. The boy was killed. This was said to be a case of implied consent because the boys were friends and were used to jostling each other about. The push was accepted as plausible between friends who jostle one another.
Could you transpose this into a sexual assault case? Why not? No more implied consent. Implied consent in sexual assault cases has no place in Canadian law. (Per McLachlin J. (as she then was) in Ewanchuk.)
Prof. Sklar has some trouble with the elimination of "implied consent"; "express consent" now required. This creates difficulty for normal sexual situations.
When a person is in a situation of fear because of age, location, etc. or the situation in Sansregret, she might "appear" to consent. Willful blindness isn't needed in this case, recklessness would suffice: all you have to say is he had an inkling there was no consent. You cannot have an honest belief that a person is consenting and be reckless both at the same time. Honest belief means that you have not one iota of information relating to her non-consent. If there is an honest belief, it drops willful blindness and recklessness off the map.
Ewanchuk,  2 S.C.R. 171
This case makes it very clear that consent or no consent involves the subjective state of mind of the complainant. "Implied consent" has no place anywhere in Canadian law. The accused cannot think that no means yes.
What is his defence? Implied consent by silence and submission: notwithstanding her "no" time after time, she let him continue. S.265.3(b) fear vitiates consent.
Sklar feels the SCC could have been clearer…whether or not the complainant consents is a question of history between the people, actions, words, etc. Here they say where the woman says "no", it is incumbent on the accused to ascertain whether the woman has changed her mind. No means no! ¶44, 45…52: once a person says "no", the party intent on continuing must then obtain a clear and unequivocal "yes" before continuing.
On the facts, the complainant said "no" three times. Every time she said "no", there was a pause before the accused escalated sexual touching. This is introduced on the mens rea issue. Sklar does not understand why the SCC is reluctant to bring in s.373.2(b).
Ewanchuk's defence has to be that he believed, notwithstanding her "no's", she was willing to have him continue to act in the way he was acting. However, the rule is that the accused must make inquiries and take reasonable steps to ensure the woman is giving him a clear and unequivocal "yes". (Sklar notes that this case seems unduly complicated…the SCC could have used s.273.2(b).)
The other holding: on these facts, the complainant was in fear and her fear would have vitiated any consent in fact given. Power, authority and trust problem.
Seaboyer,  2 S.C.R. 577
Prior sexual history is deemed irrelevant. Seaboyer changed the common law rule. Underlying this is an evidence problem: is there relevance to the complainant's prior sexual history? Subquestion: whether prior sexual history between the complainant and the accused may be more relevant than history between the complainant and other men. (Pay some attention to L'Heureux-Dube J.'s dissent; it has influence in O'Connor, Mills and Ewanchuk.)
Is the complainant's s.15 Charter right to equality balanced with the accused's s.7 right to make full answer and defence?
Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.)
When is consent vitiated? This is a case of an alleged drug addict who has sex with her dealer, application of s.273.1(2)(c). On the facts, the Court held the trial judge in error for giving the question to the jury because the facts do not confirm that she was an addict at the time of the alleged assault, and the question was explained to the jury inadequately.
May the question of consent depend upon who initiated the activity?
The aim of s.273.1(2)(c) is to protect the weak and vulnerable. The Court, relying on Audet (a teenager and her teacher = sexual assault) and Matheson (a psychologist who has sex with a patient = sexual exploitation), said that, although they couldn't accept the argument here (put forth too late, ambushed the Crown), the provision could have application between a drug dealer and an addict.
Here, the evidence indicates that the accused was a dealer, but was not the complainant's sole supplier. Was there a relationship of dependency between the complainant and the accused?
This is a case of actus reus – whether there was consent or not (not an inquiry into mens rea).
Discussion: Maybe this question should depend on which party initiated the sex-for-drugs arrangement? Eg. If the accused, knowing victim desperate for a fix, supplies her with drugs if she has sex with him, as opposed to the situation where a woman wants drugs but has no money so she offers herself in exchange for some smack. Would the latter case be okay?
What are we trying to announce about s.273.1(2)(c) if we deem it to apply to cases like Hogg? What does it announce about socio-sexual policy? What about the woman's choice to use her sexual power in exchange for money, drugs, etc. then turns around and cries rape? This isn't right either.
Is s.273.1(2)(c) overly protective?
Is it a positive or negative thing to absolve people of their choices? When do you stop? People make all kinds of choices in life, and sometimes look back and view some choices as distasteful. Should we be punishing people simply when a complainant's choice is an unpleasant one?
Hypothetical example of Sansregret: If S. had made an attempt to ascertain that she was truly consenting ("you're not afraid of me, are you?"), that she actually was consenting to sleep w/ him out of love, not out of fear, and she says yes and they have sex? Under those circumstances, following that kind of violence, there would be almost no way for a court to find that the steps were reasonable. Sklar says S. would almost have to go home and call the next day and apologize.
Malcolm (2000), 147 C.C.C. (3d) 34
s.273.2(b) Could we say he's making an unreasonable mistake, but under the circumstances ha has taken reasonable steps?
Here, the Court tells us there is a proportionate relationship b/w reasonable steps taken by accused to ascertain consent and what circumstances are known to him. What constitutes "reasonable steps" will vary. Depending upon what the person knows has happened will govern whether he has taken reasonable steps…a question of common sense.
Consent is subjective to the complainant! Getting deeper into the obligation imposed on the accused under s.273.2(b). This provision is much tougher on strangers than in Sansregret where they had a prior relationship. The prior relationship affects the circumstances known to the accused at the time he is making his inquiry.
Discussion: Another hypothetical Sansregret: If S., instead of breaking into the house and making her stand naked in the door so she couldn't escape, and threatening her…if instead he had come into her home angry and slapped her, then apologized and asked her to sleep w/ him and he said, "I hope you're not just saying yes b/c you're scared." Yet all the while inside her head she's consenting out of fear? If the violence had been less severe, would the Court have been inclined to think S. had taken reasonable steps under the circumstances? Possibly. There is an argument here.
Or, suppose S. had walked out of the house after having been violent w/ her, and come back the following day w/ a dozen roses? Would that satisfy the statute? What is this "reasonable steps" issue? He might think that her fear has dissipated, that her consent is real, yet she might still be afraid. Again, a possible argument in favor of the accused….but the feeling on the bench is quite unanimous now that consent is subjective to the complainant.
R. v. Darrach (2000), 148 C.C.C. (3d) 97 (S.C.C.)
Where the accused takes reasonable steps, yet comes to an unreasonable conclusion, he is still entitled to put forth the defence. Should evidence as to the accused's own experience of family, relationships and sex be admissible on the question of "reasonable steps" and "circumstances known to accused"? Have to weigh the probative and prejudicial value here. Would likely be included in the "circumstances known to him"…if a woman makes an unreasonable decision to forgive and forget, she must live w/ that decision.
Parliament didn't say the mistake has to be reasonable, it said the steps must be reasonable. This case gives s.273.2(b) a narrow interpretation in order to uphold its constitutionality.
Not concerned w/ s.11 self-incrimination issue in Darrach. We want Darrach to the extent it upholds the statutes enacted and redefines what Seaboyer said. Seaboyer is not a total prohibition on past sexual history; only bans admission of past history to show inference of consent or things of trifling relevance. We're not concerned with his innocence, only concerned with whether he's proven guilty.
Cited in Pappajohn, look at Plummer and Brown: P brings a woman into his apartment and threatens her until she has sex w/ him. P leaves the premises, and along comes B. B walks into the room, is told there is a woman there whom he can have sex w/. Woman on the bed, scantily clad. Without saying a word, B sleeps w/ her. B had no idea what P had just done to the woman. She consented out of her continued fear from P's assault. This is a good defence under Pappajohn… What about under s.273.2(b)? On those facts, would there be a burden to commence conversation to ascertain consent? Maybe B has been told that this woman is impassive and of few words, but in reality she's immobilized by terror? Could B rely on information given to him by other people? Lets say he wants to testify that she has slept w/ other men and behaved the same way? Should defence counsel be able to cross-examine her on this? Not if the evidence put forth is designed to derail the complainant's credibility!
R. v. Seaboyer; R. v. Gayme,  2 S.C.R. 577
(Prior to s.273.2(b).) Prohibits past sexual history of complainant to derail her credibility or to support an inference that she consented.
Jalo is the example cited by McLachlin J. to allow admission of evidence of past sexual history: the father had uncovered a relationship going on b/w his son and daughter, wanted to end it, this caused daughter to lash out and accuse father of sexual assault. In Jalo, permitted evidenceof complainant's sexual history b/c the accused was entitled to his s.7 right to make full answer and defence, goes to show motive to make a false accusation (probative outweighs prejudicial value). Jalo plays into the myth that women are spiteful and prone to make false accusations to get even. "Hell hath no fury like a woman scorned."
Seaboyer is not a total prohibition re: bringing in past sexual history of the complainant…the accused should be entitled to bring in evidence re: his innocence, provided it is not simply trifling and employed to imply the complainant's consent.
Eg. from L'Heureux-Dubé J.'s dissent: She quotes an article by Galvin: fact pattern where victim goes to a rock concert…after concert she meets rock star, he invites her to his hotel room…they have a few drinks…they get it on. The accused says they had consensual sex; the complainant says she was sexually assaulted. Could the accused adduce evidence as to the complainant's sexual habit of being a groupie and often going to concerts and sleeping w/ rock stars after the show? You could perhaps admit such evidence if it went to the accused's mens rea, ie. if there was an "air of reality" to his claim of mistaken belief. Or, it could be adduced to show the complainant's pattern of extortion.
L'Heureux-Dubé J. says: You consent to the person, not the circumstance.
(Remember, though: prior criminal acts of the accused may be admitted if there is a striking similarity wrt crime for which he is presently on trial.)
The purpose of s.276 is to protect the complainant's privacy and to encourage them to come forward, but remember the purpose of trial is not to protect the complainant, but rather to protect the accused.
(See article by Estrich in casebook?)
There is a battle of competing logics:
Complainant's past history of sleeping w/ rock stars has some bearing on whether there was/was not consent.
The McCormick test: more likely w/ evidence than w/out evidence (low threshold for evidentiary relevance).
If she consented before, why would she make a complaint against this defendant now if it isn't true?
In William Kennedy Smith trial, evidence snuck in that the complainant Patricia Bowman was a barfly. L'Heureux-Dubé and Gonthier JJ. would object to this b/c of the insidious effect this has on the credibility of the complainant in the eyes of the jury.
Have we changed the issue to whether the woman consented and forgetting whether the defendant is telling the truth? Does the relevance of the complainant's past say anything about the defendant's reasoning and truth?
The acquittal in the Kennedy Smith trial happened b/c she had gaps in her story. The prosecution tried unsuccessfully to introduce testimony by experts of rape trauma syndrome (this would have helped her credibility). Generally, expert testimony is ruled inadmissible when it goes only to discredit/enhance credibility. When the trial judge senses the expert is trying to tell the jury who to believe, they will rule said evidence inadmissible. Then, the prosecution received a second blow: 3 female witnesses were not allowed to testify as to Kennedy Smith's past behavior w/ them. These 2 exclusions doomed the prosecution's case.
Eg. McFadden: The accused says, "I think my wife is the most beautiful woman in the world." This comment opens the door to allowing the crown to come in and rebut the accused's character, inferred by the above statement to mean that he loves his wife, is a good family man and would therefore never rape anybody. This is why you tell your clients to answer questions succinctly, or else their character can be called into question.