What Constitutes Reasonable Steps to Ascertain Consent for Sex?

Judge Wayne Gorman reports on an interesting case from Canada,

In R. v. Alboukhari, 2013 ONCA 581, September 27, 2013, the accused was convicted of the offence of sexual assault.  The offence involved the accused having sexual intercourse with the complainant. The complainant testified that she thought she was having sexual intercourse with her boyfriend.  Thus, the issue became whether the accused had taken reasonable steps to ascertain consent as required by section 273.2(b) of the Criminal Code. The Ontario Court of Appeal set aside the conviction and ordered a new trial on the basis of the trial judge’s misapprehension of the evidence.  Of interest to us is that the Court of Appeal’s judgment provides a succinct summary of the law in relation to the application of section 273.2(b) of the Criminal Code.  At paragraphs 40 to 44:

A complainant’s apparent consent to sexual activity may provide an accused charged with sexual assault with a defence.  Since the identity of an individual’s sexual partner is an inseparable component of consent to sexual activity, s. 273.2(b) of the Criminal Code requires that reasonable steps be taken to ascertain that the individual is consenting to have sex with the accused.   The accused may rely on the defence that he honestly but mistakenly believed that the complainant was consenting to have sex with him.  However, that defence is not available if the accused did not take reasonable steps, in the circumstances known to him, to ascertain consent.

The Manitoba Court of Appeal has described the approach to determining if the accused has taken reasonable steps to ascertain consent as a “quasi-objective test”: R. v. Malcolm, 2000 MBCA 77, 147 C.C.C. (3d) 34, at para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473.  In Malcolm, the court set out a useful approach to the determination, as follows, at para. 24:

First, the circumstances known to the accused must be ascertained. Then, the issue which rises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or Even maybe, then the accused would not be required to take further steps and the defence will apply.

Thus, while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused.  The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time:  R. v. Darrach (1998),  38 O.R. (3d) 1 (C.A.), at p. 89,  aff’d on other grounds 2000 SCC 46, [2000] 2 S.C.R. 443.

What is required in terms of reasonable steps depends on the facts. As the British Columbia Court of Appeal stated in R. v. G.(R.), at para. 29:

[Section] 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and “the circumstances known to him” at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief.

The accused’s mistaken belief in consent need not be reasonable in order for the defence to be available. As Morden A.C.J.O. stated in Darrach, at p. 90, “[w]ere a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis.

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