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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

PRIOR SEXUAL ACTIVITY-SECTION 276 OF THE CRIMINAL CODE-HONEST BUT MISTAKEN BELIEF IN COMMUNICATED CONSENT

In R. v. Hay, 2022 ABCA 246, July 18, 2022, the accused was acquitted of the offence of sexual assault.  The trial judge concluded that the accused had an honest but mistaken belief in communicated consent. The trial judge had allowed the accused to present evidence of prior sexual activity after conducting a section 276 Criminal Code hearing.  The Crown appealed.

The appeal was allowed and a conviction was entered.  The Alberta Court of Appeal concluded that the trial judge erred in admitting the evidence of prior sexual activity and in her application of the defence of honest but mistaken belief in communicated consent.

Section 276:

The Court of Appeal indicated that section 276 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…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 (at paragraphs 10 and 11). 

Honest But Mistaken Belief in Communicated Consent:

The Court of Appeal noted that “[e]vidence 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…mistaken belief in communicated consent will not stand if the belief is based on implied consent, broad advance consent, or propensity to consent…Silence, passivity, or ambiguous conduct does not equate to consent and assuming they do is therefore also a mistake of law” (at paragraphs 12 and 13).

Conclusion:

The Court of Appeal concluded that the trial judge erred in admitting evidence “of the complainant’s nonverbal communication from the previous encounter on August 24… the admitted evidence unfortunately followed the path of prohibited propensity reasoning. It served no other purpose than to support an inference that because the complainant had consented to digital anal penetration on August 24, she consented to this same sexual activity on September 13; or worse, that because she had twice consented to digital anal penetration, she must have consented to anal intercourse. There was no link between a prior incident of digital anal penetration and the sexual act for which Mr Hay was charged – anal intercourse” (at paragraphs 15 and 17).

The Court of Appeal concluded that “the defence of honest but mistaken belief in communicated consent had no air of reality because it was based largely on errors of law regarding consent and because there was no evidence that Mr Hay had taken reasonable steps to ascertain consent to engage in anal intercourse. Quite the opposite; he admitted there was no discussion of anal intercourse” (at paragraph 43).