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


R. v. Wesaquate, 2022 SKCA 101, September 16, 2022, at paragraphs 18 to 23 and 39:

Sexual assault, like all crimes, has an actus reus and a mens rea component. The Crown must prove both beyond a reasonable doubt to obtain a conviction. The actus reus component of sexual assault involves the touching of another person in a sexual way without their consent. The mens rea consists of the intention to touch the other person in that way and knowing of, being reckless of, or wilfully blind to, a lack of consent on their part…

The first two elements of the actus reus—the touching and its sexual nature—are determined objectively. The third element, absence of consent, is subjective and determined by reference to the complainant’s internal state of mind towards the touching…Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred…

“Consent” is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. As set out above, that connotes a purely subjective analysis, determined only by reference to the complainant’s internal state of mind at the time the touching of a sexual nature occurs. Consent requires the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A. at para 31G.F. at para 29). Consent must be freely given, must exist at the time the sexual activity in question occurs, and must be linked to the sexual activity in question, which encompasses the specific sexual act, the sexual nature of the activity and the identity of the partner (Barton at para 88). Subjective consent on the part of the complainant cannot be found to exist in any of the situations covered by s. 273.1(2) of the Criminal Code (i.e., where the alleged consent is given by a person other than the complainant; where the complainant is unconscious or otherwise incapable of consenting; where the accused induces the complainant to consent by abusing a position of trust, power or authority; where the complainant expresses a lack of agreement to the sexual activity in question, or where the complainant withdraws previously-given consent).

If the complainant did not subjectively consent to the sexual activity or touching in question, the actus reus of sexual assault is established. However, as the Supreme Court observed in G.F.:

[33] …the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result in an acquittal. There is a second aspect to “consent” for the purposes of the actus reus of sexual assault — subjective consent must also be effective “as a matter of law” …. Another way of framing that question is to ask whether the subjective consent has been vitiated.

(citations omitted)

Where the apparent consent of the complainant to sexual touching has been obtained by force, threats or fear of force, fraud, or the exercise of authority, that consent is of no legal effect (s. 265(3)of the Criminal Codesee also: Kirkpatrick at paras 33–34). The same can be said where the complainant is induced into sexual activity by the accused abusing a position of trust, power, or authority (s. 273.1(2)(c)). In short, where the complainant has been deprived of control over who touches their body, and how, there is no consent in law. Moreover, a complainant who is unable to say “no” to sexual touching, or who believes they have no choice in the matter, is not capable of providing legally effective subjective consent (G.F. at paras 35 and 56–57).

Establishing the mens rea component of sexual assault requires the Crown to prove that the accused intentionally touched the complainant, and that the accused knew, or was reckless or wilfully blind to the fact that the complainant was not consenting. The analysis is typically conducted after the trier of fact has concluded that the actus reus has been committed. The focus then shifts to the accused person’s mental state, with the question being whether the accused had the requisite knowledge or acted with the requisite recklessness or wilful blindness regarding lack of consent (Barton at para 87G.F. at para 25H.W. at para 46).

…recklessness regarding lack of consent to sexual contact represents a lower standard than wilful blindness. This is because recklessness involves only awareness of a risk that the complainant is not consenting and persistence in a course of conduct in the face of that risk, whereas wilful blindness involves a deliberate failure by an accused person to make the necessary inquiry about whether the complainant is consenting, in order to remain purposefully unaware of the truth. Put another way, recklessness involves a failure to turn one’s mind to the full extent of the risk that one’s conduct may be unlawful, while wilful blindness involves deliberately suppressing one’s suspicion about, or actively remaining ignorant to, the unlawfulness of that conduct …