In R. v. H.W., 2022 ONCA 15, January 13, 2022, the accused was charged with the offence of sexual assault. At his trial, the complainant testified that she did not consent to the sexual activity that occurred. The accused testified that she did consent. The defence of an honest but mistaken belief in communicated consent was not left with the jury.  In instructing the jury on the elements of the offence, the trial judge indicated that the Crown had to prove that that the accused “knew of, or was wilfully blind or reckless as to, the absence of the complainant’s consent (the ‘knowledge element’)” (see paragraph 4).

The accused was acquitted.  The Crown appealed.  The Ontario Court of Appeal described the issue raised in the following manner:

This Crown appeal raises the question of how a jury should be instructed on the mens rea requirement for sexual assault when the defence of honest but mistaken belief in communicated consent is not available to the accused. That question is part of a broader one concerning the extent to which the knowledge element of the offence — that the accused knew of, or was wilfully blind to or reckless as to, the absence of the complainant’s consent to the sexual activity — is to be considered when the accused has no defence of honest but mistaken belief in communicated consent.

The appeal was allowed and a new trial ordered. The Ontario Court of Appeal concluded that it “was not an error of law to instruct the jury that the charge of sexual assault required that the Crown prove that the respondent knew of, or was wilfully blind or reckless as to, the complainant’s non-consent, even where the defence of honest but mistaken belief in communicated consent was unavailable to the respondent” (at paragraph 11). However, the Court of Appeal also concluded that it agreed “agree with the Crown that in the circumstances, the trial judge’s instruction to the jury had to provide guidance as to what the jury could and could not properly consider on the knowledge element of the offence. The jury instruction had to ensure that the respondent was not effectively given the benefit of a defence that was not available to him…The instruction in this case did not do so. It did not instruct the jury that the respondent’s evidence of a mistaken perception or belief that the complainant had consented was not a defence and should not be considered. Instead, it directed the jury to consider that very evidence. Moreover, it failed to guide the jury as to how to approach the knowledge element issue on the evidence they could consider” (at paragraphs 12 and 13).

The Court of Appeal held that “the trial judge was required to ensure that the jury considered only evidence that was relevant to that issue, in a way that inoculated them from legal error. He had to ensure that any evidence of the respondent’s mistaken belief in consent was removed from the factual mix the jury considered on this issue, so as not to allow an unavailable defence in through the back door. And he had to guide the jury as to how to approach the knowledge element on the basis of the evidence they could properly consider” (at paragraph 86).

A Summary:

The Court of Appeal summarized the applicable principles in the following manner (at paragraph 98):

In sum, to guide the jury on the knowledge element in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the trial judge should proceed as follows:

a. The jury should be instructed that, as a matter of law, the accused cannot rely on a defence that the accused mistakenly believed the complainant consented to the sexual activity. Therefore, the jury is to proceed on the factual premise that the accused did not affirmatively believe that the complainant was consenting or communicating consent.

b. The jury should be instructed that they should not rely on evidence if it is only relevant in supporting an inference that the accused believed that the complainant was consenting or had communicated consent, and the trial judge should provide guidance in this regard by identifying for the jury the type of evidence it should not consider.

c. If there is an air of reality to a defence that the accused did not know of the lack of the complainant’s consent on a basis other than a belief in consent (for example, the type of situation envisaged in the MacIntyre hypothetical), the jury should be directed to the evidence that they should consider on this issue.

d. Where there is no air of reality to the defence of honest but mistaken belief in communicated consent, and no air of reality to a defence that the accused did not know of the absence of consent by the complainant on another basis, the trial judge may tell the jury that it should not be difficult for them to find that the accused knew that the complainant was not consenting, or was reckless or wilfully blind to the absence of consent.