R. v. Al-Akhali, 2025 ONCA 229, March 21, 2025, at paragraphs 20 to 31:
The defence of honest but mistaken belief in communicated consent has two requirements. The accused must (1) honestly believe that the complainant communicated consent and (2) take reasonable steps in the circumstances known to the accused at the time to ascertain consent. If the accused shows an air of reality to both requirements, then the defence is in play and the Crown must negate it by proving beyond a reasonable doubt that either requirement is lacking…If the Crown negates the defence, then the accused can no longer claim that he believed that the complainant communicated consent. The Crown will then usually have “little difficulty” proving that the accused knew that the complainant did not consent or was wilfully blind or reckless to this risk.
The first requirement means that the accused must subjectively accept as true that the complainant said “yes” to the sexual activity through her words and/or actions. Merely suspecting, guessing, supposing, or hoping that this might be true is insufficient…Rather, the defence fails if the accused was either aware of a risk that the complainant did not communicate consent or suspected that such a risk might exist, but deliberately suppressed the suspicion and chose not to inquire further. Those are the blameworthy mental states of recklessness and wilful blindness, not honest belief…The defence also fails if it rests on a mistake of law, such as implied consent, broad advance consent, or propensity to consent.
In 1992, Parliament added the second requirement, that the accused must “take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”
Under the two-part reasonable steps test, judges and juries first determine the circumstances that the accused subjectively knew. Next, they decide if a reasonable person knowing those circumstances would have taken more steps than the accused took to ascertain communicated consent to the sexual activity. The defence fails if the answer to this second question is yes and succeeds if the answer is no or there is reasonable doubt.
Six key principles govern the application of this test.
First, Parliament’s purpose of protecting people from and preventing non-consensual sexual activity drives the reasonable steps assessment. This principle favours greater care and requiring more, not fewer, steps. It ensures that the reasonable person is “guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity…The reasonable person also recognizes that taking further steps to ascertain consent is an easy and straightforward way to respect others and avoid gravely wronging and harming them.
Second, the reasonable person would take more steps if they did not believe that the complainant had communicated consent or if they were aware of a risk of non-consent…This is so because reasonable steps invariably “constitute reasonable grounds” to believe in communicated consent…Conversely, “a step … that does not in fact reasonably support a belief … cannot constitute a reasonable step.”…This principle guards against making reasonable steps a “lip service” or box-checking exercise divorced from its goal of ascertaining communicated consent.
Third, the reasonable person would take greater care if the accused knows circumstances that call out for caution. See Cornejo, at paras. 23-30. For instance, greater care is needed if:
• The accused intends to engage in an invasive and/or risky sexual activity, like unprotected sexual intercourse;
• The accused does not know, is unfamiliar with, and/or has no sexual experience with the complainant;
• The accused knows that the complainant rejected the accused’s advances before and/or during the encounter;
• The accused knows that the complainant is or appears to be intoxicated and/or vulnerable – greater care is needed the more intoxicated and/or vulnerable the complainant appears; and,
• The accused knows that the complainant is or appears to be unconscious, asleep, or passed out – an unconscious person cannot provide consent.
Fourth, while people can communicate consent through actions as well as words, non-verbal conduct often lacks the clarity of a simple, verbal “yes” or “no.” It can be easy to misunderstand or make unfounded assumptions about what another person is trying to communicate through actions unaccompanied by words, especially if people are unfamiliar with each other. Thus, unless those actions unambiguously communicate consent, the reasonable person would take more steps.
Fifth, the reasonable person would take steps to ascertain consent to each sexual act, a requirement which may, depending on the circumstances, require taking additional steps where there are multiple acts…This precludes a blanket approach that equates consent to one sexual act with consent to any and all…Accordingly, confirming that another person has communicated consent to kissing and undressing is not, without more, reasonable steps to ascertain consent to sexual intercourse.
Sixth, reasonable steps cannot be based on a mistake of law. Thus, steps to ascertain communicated consent that are met with silence, passivity, or ambiguous conduct are not reasonable. Neither is “test[ing] the waters” by engaging in non-consensual sexual touching.
