R v Barton – 2019 SCC 33 (Moldaver):

[87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42).
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[90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid., at para. 47).

[91] This Court has consistently referred to the relevant defence as being premised on an “honest but mistaken belief in consent” (see e.g., R. v. Esau, [1997] 2 S.C.R. 777, at para. 1; Ewanchuk, at para. 43; Darrach, at para. 51; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 57; R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 32; J.A., at para. 24), and the Code itself refers to the accused’s “belief in consent” (s. 273.2(b) (heading)). However, this Court’s jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct (see R. v. Park, [1995] 2 S.C.R. 836, at paras. 39 and 43-44 (per L’Heureux-Dubé J.); Ewanchuk, at para. 46; J.A., at paras. 37, 42 and 48). As L’Heureux-Dubé J. stated in Park, “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of Page 36 of 70 R. v. Barton, [2019] S.C.J. No. 33 the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary” (para. 44 (emphasis in original)).

[92] Therefore, in my view, it is appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
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[94] However, great care must be taken not to slip into impermissible propensity reasoning (see Seaboyer, at p. 615). The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the “twin myths”, which is prohibited under s. 276(1)(a) of the Code.
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[97] For present purposes, three consent-related mistakes of law are particularly relevant: implied consent, broad advance consent, and propensity to consent. I will address these concepts in turn. (i) Implied Consent (Ewanchuk)

[98] The “specious” defence of implied consent “rests on the assumption that unless a woman protests or resists, she should be ‘deemed’ to consent” (Ewanchuk, at para. 103, per McLachlin J. (as she then was)). Ewanchuk makes clear that this concept has no place in Canadian law. As Major J. stated for the majority, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence” (para. 51, citing R. v. M. (M.L.), [1994] 2 S.C.R. 3; see also J. Benedet, “Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution” (2014), 52 Alta. L. Rev. 127). It is also a mistake of law to infer that “the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant” (J.A., at para. 47). In short, it is an error of law — not fact — to assume that unless and until a woman says “no”, she has implicitly given her consent to any and all sexual activity. (ii) Broad Advance Consent (J.A.)

[99] “Broad advance consent” refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A., at paras. 44-48). As summarized in J.A., the definition of “consent” under s. 273.1(1) “suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind” and “this Court has also interpreted this provision as requiring the complainant to consent to the activity ‘at the time it occur[s]'” (para. 34, citing Ewanchuk, at para. 26). Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. (iii) Propensity to Consent (Seaboyer)

[100] The law prohibits the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question (see Code, s. 276(1)(a); Seaboyer). This is the first of the “twin myths”. Accordingly, an accused’s belief that the complainant’s prior sexual activities, by reason of their sexual nature, made it more likely that she was consenting to the sexual activity in question is a mistake of law.
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[104] Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time (see R. v. Cornejo (2003), 68 O.R. (3d) 117 (C.A.), at para. 22, leave to appeal refused, [2004] S.C.C.A. No. 32, [2004] 3 S.C.R. vii, citing K. Roach, Criminal Law (2nd ed. 2000), at p. 157; see also Sheehy, at pp. 492-93). Notably, however, s. 273.2(b) does not require the accused to take “all” reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code7 (see R. v. Darrach (1998), 38 O.R. (3d) 1 (C.A.), at p. 24, aff’d 2000 SCC 46, [2000] 2 S.C.R. 443 (without comment on this point)).
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[106] Keeping in mind that “consent” is defined under s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”, what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly factspecific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.

[107] That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537).

[108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.

[109] Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.

[110] Finally, the concept of reasonable steps to ascertain consent under s. 273.2(b) of the Code must be distinguished from the concept of reasonable grounds to support an honest belief in consent under s. 265(4). The latter section provides that in the context of an alleged assault, whether sexual or otherwise (see s. 265(2)), where the accused claims he believed the complainant consented to the conduct in question and the trial judge is “satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence”, the trial judge “shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief”. This provision rests on the idea that as the accused’s asserted belief in consent becomes less reasonable, it becomes increasingly doubtful that the asserted belief was honestly held (see Pappajohn, at pp. 155-56, per Dickson J. (dissenting, but not on this point)).

[111] In other words, where the accused is charged with some form of assault, the presence or absence of reasonable grounds is simply a factor to be considered in assessing the honesty of the accused’s asserted belief in consent in accordance with s. 265(4). By contrast, where the accused is charged with a sexual offence under ss. 271, 272, or 273, a failure to take reasonable steps is fatal to the defence of honest but mistaken belief in communicated consent by virtue of s. 273.2(b).

[112] With this in mind, in the context of a charge under ss. 271, 272, or 273 where the accused asserts an honest but mistaken belief in communicated consent, if either (1) there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent or (2) the Crown proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain consent, then there would be no reason to consider the presence or absence of reasonable grounds to support an honest belief in consent under s. 265(4), since the accused would be legally barred from raising the defence due to the operation of s. 273.2(b).

[113] Finally, while the conceptual distinction between reasonable steps under s. 273.2(b) and reasonable grounds under s. 265(4) remains valid, as a practical matter it is hard to conceive of a situation in which reasonable steps would not also constitute reasonable grounds for the purpose of assessing the honesty of the accused’s asserted belief.
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[121] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent. This Court recently confirmed that where there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, the defence of honest but mistaken belief in communicated consent must not be left with the jury (see R. v. Gagnon, 2018 SCC 41). A number of provincial appellate decisions, including the Court of Appeal’s decision in this case, have reached the same conclusion (see e.g., Cornejo, at para. 19; R. v. Despins, 2007 SKCA 119, 228 C.C.C. (3d) 475, at paras. 6 and 11-12; R. v. Dippel, 2011 ABCA 129, 281 C.C.C. (3d) 33, at paras. 22-23 and 28; R. v. Flaviano, 2013 ABCA 219, 368 D.L.R. (4th) 393, at paras. 41 and 50, aff’d 2014 SCC 14, [2014] 1 S.C.R. 270; C.A. reasons (2017), at para. 250).

[122] Accordingly, if there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, then the defence of honest but mistaken belief in communicated consent has no air of reality and must not be left with the jury. This threshold analysis serves an important purpose: it keeps from the jury defences that lack a sufficient evidentiary foundation, thereby avoiding the risk that the jury might improperly give effect to a defective defence. As such, contrary to what occurred at trial in this case,8 the air of reality test should not be ignored.

[123] By contrast, if there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps. The trial judge should instruct the jury as such, making it clear that the reasonable steps requirement is a precondition to the defence. In addition, the trial judge should explain, as a matter of law, the type of evidence that can and cannot constitute reasonable steps, making sure any steps that are grounded in mistakes of law are relegated to the latter category. Where the Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, that does not lead automatically to an acquittal. In those circumstances, the trial judge should instruct the jury that they are required, as a matter of law, to go on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent. This requirement flows from the fact that the defence is ultimately one of an “honest but mistaken belief in communicated consent”, not one of “reasonable steps”. Ultimately, if the Crown fails to disprove the defence beyond a reasonable doubt, then the accused would be entitled to an acquittal.