Sexual Assault
1983 Amendments
- Created three new offences: S. 271, S. 272 and S. 273
- These abolished a number of stereotypes and sexual myths: no corroboration required (S. 274),
abrogated rules relating to the doctrine of recent complaint (S. 275), sexual reputation is not allowed to
challenge credibility (S. 277), rape shield law (S. 276)
o S. 276 was challenged in Seaboyer and Gayme as being too narrow and exceptions were changed
- S. 265(4) introduced mistaken belief in consent
o Challenged in Osolin, found it was simply a codification of the common law mistake of fact.
1992 – Bill C-49
- This was Parliaments response to Seaboyer and Gayme.
- (1) Replaced old S. 276 with new provisions which dealt with the admissibility of evidence of a
complainants prior sexual activity
o (a) S. 276(1): Can’t use prior sexual history to say more likely to have consented or less worthy
of being believed
o (b) S. 276(2): Can admit history if it is relevant to an issue and has significant probative value.
o (c) S. 276(3): Judge must consider 8 factors
- (2) Added S. 273.1 and 273.2 by defining sexual offences and by removing the defence of honest by
mistaken belief in consent unless the accused can show reasonable steps in the circumstances known to
the accused at the time to ascertain that the complainant was consenting.
- These laws were challenged in Darrach, but upheld and Section 273.1 was discussed in Ewanchuk
1996 Amendments – Bill C-46
- In response to O’Connor in which the court said that personal records of the accused could be
subpoenaed subject to judicial inquiry. S. 278.1-278.9 challenged and upheld in Mills
Personal Records: 2-step procedure modeled O'Connor dissent, Summarized in Darrach,
- (1) The defence must first apply in writing under s. 278.3 with grounds to establish that the record is
"likely relevant". On a voir dire, the judge may order the holder of the record to produce it if the defence
can demonstrate that the record is "likely relevant" and "is necessary in the interests of justice".
- (2) The judge then reviews the material and decides whether or not to produce it to the accused. The
Code contains a list of factors to help the judge determine the relevance of the record
Past Sexual History:
- (i) Replaced the old s. 276 of the Criminal Code with new provisions (s. 276 to s. 276.5) which are
designed to deal comprehensively with the admission of evidence of a complainant's prior sexual
activity; and
- Codified the approach of the majority in Seaboyer:
o Section 276(1) categorically prohibits evidence of a complainant's sexual history if it is being
used to support either of the twin myths: (i) more likely to have consented, or (ii) less worthy of
belief.
o (b) Section 276(2) provides that before admitting evidence of the complainant's prior sexual
history, the judge must determine [according to the procedures in s. 276.1-276.2] that the
evidence is (i) relevant to an issue at trial and (ii) has significant probative value that is not
substantially outweighed by the danger of prejudice to the proper administration of justice.
o (c) Section 276(3) provides that in determining whether such evidence is admissible the judge
must take into account at least eight listed factors (which factors attempt to balance the
accused's, the complainant's and society's interests).
- (ii) Added s. 273.1 and 273.2 which amend the law by defining consent in regard to sexual offences and
by removing the defence of honest but mistaken belief in consent unless the accused took "reasonable
steps, in the circumstances known to the accused at the time, to ascertain that the complainant was
consenting."
1. Was there Sexual Assault?
- S. 265 defines assault and S. 265(2) says that sexual assaults are included in this.
- SCC defines sexual assault as (a) an assault (S. 265) (b) in circumstances of a sexual nature whereby the
sexual integrity of the victim is violated. (Chase)
- Sexual nature is assessed objectively = (a) the body part touched, (b) the nature of the contact, (c) the
situation in which it occurred, (d) the words and gestures accompanying the act, any other surrounding
circumstance.
- Example: R v. KB – father grabs his sons genitals, is sexual assault
2. Did the accused have the AR (Ewanchuck)?
- (1) Touching (assessed objectively – was there touching?)
- (2) In a sexual context (assessed objectively – what would the reasonable person conclude?)
- (3) Without the complainant's consent (subjective – what was the complainant’s state of mind?) (Here
talk about if she consented, 273.1 and also 265(3) the consent being negated)
o Section 265(3), no consent is obtained where the complaint submits or does not resist due to (a)
force, (b) threats of force, (c) fraud, or (d) the exercise of authority.
o S. 273.1 defines consent as the voluntary agreement of the complaint to engage in sexual activity
in question and provides that no consent is obtained where
 (a) the consent is expressed by someone other than the complainant
 (b) where the complainant is incapable of consenting to the activity
 (c) where the activity is induced by an abuse of position of trust, power or authority
 (d) where the complainant expressed by words or actions a lack of agreement
 (e) the complainant expresses by words or conduct a revocation of her agreement.
o Silence does not mean consent, there is no defence of implied consent. Express consent must be
positively affirmed. (Ewanchuck)
o A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and
provides no defence. (R. v. M.(M.L.))
Onus: Where complainant says no consent, it is open to the accused to argue that the complainant's words and
actions, before and during the sexual activity, raise at least a reasonable doubt as to the truth of the
complainant's assertion. If a reasonable doubt exists, the Crown has not proven its case. On the other hand, if
the trier of fact is convinced beyond a reasonable doubt that the complainant subjectively did not consent, then
absence of consent has been established.
3. Did the accused have the MR (Ewanchuck)?
- (1) An intention to touch
- (2) Knowing of, or being reckless of or wilfully blind to, a lack of consent.
- Can negate the MR if the accused took “objective reasonable steps” to ascertain consent. (S. 273.2)
- This belief must be honest (Ewanchuck) BUT
- This is subject to CC s. 273.2: Mistake of fact is no defence to sexual assault where:
o The accused belief arose from self-induced intoxication, or recklessness or wilful blindness
(Sansregret); or
o The accused did not take reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting. Must be both honest and reasonable.
- Darrach upheld the constitutional validity
- The accused must honestly believe that the complainant said "Yes" through her words or actions; a
belief that touching was desired is insufficient. (Ewanchuck)
- Where the complainant has expressed unwillingness to engage in sexual contact, accused must obtain a
clear and unequivocal "Yes" before he proceeds with any further sexual touching. No “testing the
waters”, no presuming that a lapse in time has eroded the refusal. (Ewanchuck)
- Air of Reality: Mistake of fact in sexual assault follows the general Cinous rule. However, although the
accused is not required to provide evidence other than his own testimony, the mere assertion that “I
thought she was consenting” is insufficient evidence to ground the defence. (Osolin)
NCRMD
1. Does the accused have a disease of the mind?
- Definition (Cooper): Any illness, disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental
states such as hysteria or concussion. Must be of such intensity as to render the accused incapable of
appreciating the nature and quality of the violent act or of knowing that it is wrong.
- It is a legal term and should be given a definition by the courts, not the medical profession (Simpson).
2. Does the disease of the mind prevent the accused from "appreciate the nature and consequences" of their act
- Appreciating only the physical consequences which are essential elements of the offence; appreciation
of penal consequences is not included (Abbey)
- This is a more narrow definition of “appreciate” than was adopted previously (In Cooper included an
emotional appreciation, and broad ability to perceive consequences)
- Kirkby and Swain attempted to re-assert a broad definition of "appreciate".
- BUT in R v. Landry: Applied the narrower definition of "appreciate, concluded that the accused was
insane on the ground that he was incapable of knowing that his act was "wrong".
3. Does the disease of the mind prevent the accused from knowing action “was wrong"?
- Means “wrong by the standards of the ordinary person.” Accused must lack the capacity to rationally
decide whether acts were right or wrong and make a rational choice about doing it. (Oommen)
- This includes being "morally wrong in the circumstances according to the moral standards of society"
(in addition to being merely legally wrong) (Chaulk)
- This branch is satisfied if D was "unable to rationally consider whether his act was right or wrong in the
way a normal person would". Believing your friend is Satan may prevent you from knowing that killing
him is wrong. (Landry)
4. Is the accused fit to stand trial?
- Section 2 of the Criminal Code defines "unfit to stand trial" as unable on account of mental disorder to conduct
a defence or to instruct counsel to do so, and in particular, unable on account of mental disorder to
o (a) understand the nature of the proceedings,
o (b) understand the possible consequences of the proceedings, or
o (c) communicate with counsel.
- Whittle: Test = "limited cognitive capacity to understand the proceedings and communicate with counsel"
o It is not necessary that the accused "be capable of making rational decisions beneficial to the
accused"
o It is not necessary that the accused "be capable of exercising analytical reasoning in making a choice to
accept the advice of counsel or in coming to a decision that best serves his/her interests"
5. Who can raise the insanity defence? (Swain)
- (a) The insanity defence may be raised during the trial by the accused; or
- (b) During the trial by the prosecutor if in the trial judge's opinion the accused has somehow put his or her
mental capacity for criminal intent in issue; or
- (c) By either the accused or the Crown after the trier of fact has concluded that the accused was guilty of the
offence, but before a verdict of guilty is formally entered [the so-called bifurcated trial]
- Section 16(4) requires an accused to disprove sanity on a balance of probabilities and therefore violates the
presumption of innocence because it permits a conviction in spite of reasonable doubt in the mind of the trier
of fact as to guilt.
o This was upheld in Chaulk because otherwise would put an impossible burden on the Crown.
6. If NCRMD then the accused (Winko):
- Under the new provisions (ss. 672.45 and 672.54), the Court will hold a disposition hearing to make a
decision, taking into consideration, amongst other things, the need to protect the public from dangerous
persons, that the "NCRMD" or "unfit" person shall be
o (i) released unconditionally,
o (ii) released upon conditions of supervision, or
o (iii) detained in custody in a hospital.
Automatism
1. To Prove Automatism the accused has the burden of proof to rebut the presumption of voluntariness on a balance of
probabilities (Stone). This is not a higher standard (Fontaine)
(a) The accused must claim involuntariness and confirm this claim by calling expert psychiatric or
psychological evidence, along with any other supporting evidence
(b) Evidence that the accused was in a state of automatism will generally not meet the necessary burden of
proof if that expert opinion is based only on an assumption of the truthfulness and accuracy of the accused's
account of the event, without other supporting evidence of automatism;
(c) If the accused lays proper foundation for automatism, the TJ must then decide as a matter of law whether
that evidence supports a defence of mental disorder (insane) automatism or non-mental disorder automatism,
which in turn depends upon whether the involuntariness was caused by a mental disorder (disease of the mind);
2. Were the actions caused by a Disease of the mind?
- Start from the proposition that the condition is a disease of the mind, and then decide whether the
evidence takes the condition out of the disease of the mind category (Stone)
- Disease of the mind: "A malfunctioning of the mind that is primarily internal to the accused having its
source in his/her organic, psychological or emotional make-up; i.e., some subjective condition or
weakness internal to the accused. (Rabey) Does not include transient malfunctioning of the mind caused
by some external factor, such as a concussion caused by a physical blow to the head.
- Holistic Approach to D of M (Stone)
- (1) An internal cause: Unconscious (dissociative) conduct caused by a psychological blow arising out
of the ordinary stresses and disappointments of life, will normally be attributable to an internal,
psychological weakness in the accused's make-up
o Thus, it will be classified as a disease of the mind and therefore the proper defence is mental
disorder (insanity), but not automatism. (Rabey)
- (2) An external cause/continuing danger: if the psychological blow arises from an extraordinary
event that may cause an "average, normal person" to go into shock/dissociation, then the psychological
blow will be classified as an "external cause" and NOT a disease of the mind. (Rabey)
o Not likely to reoccur, must be an extremely shocking trigger (Stone). The ordinary stresses and
disappointments of life do not constitute an external cause. (Parks was external, now internal)
- (3) Policy: (1) Fear of fabrication, (2) Public disillusionment by an outright acquittal, (3) A verdict of
acquittal on the basis of automatism does not allow for subsequent monitoring and control of the
accused as a NCRMD verdict does.
- Factors to consider in assessing a claim of automatism include, inter alia, the severity of the triggering
stimulus, bystanders’ corroborating evidence, corroborating medical history of similar dissociative
states, the presence or absence of motive, the relationship between the alleged trigger of the automatism
and the victim of the automatistic violence. (Stone)
3. Then the trial judge must (Stone)
- (1) Assess whether a proper foundation for a defence of automatism has been established (air).
o Is there evidence which could convince a jury on a BOP that accused was in a state of
automatism at the time of the act
- (2) If a proper evidentiary foundation has been established, the trial judge must next determine whether
the condition alleged by the accused is mental disorder or non-mental disorder automatism.
o (1) If the unconscious conduct was caused by "disease of the mind", then the accused must rely
on the mental disorder/insanity defence [s. 16].
o (2) If caused by intoxication, the accused must rely on the intoxication defence
o (3) If caused by something other than disease of the mind or intoxication, the accused may rely
on non-insane automatism as a defence (Rabey).
- The judge decides if it was a disease of the mind, the jury decides if the person was affected by it
(Stone)
Provocation
3 requirements (or elements) for the defence of provocation as set out in s. 232(2)
1. Was the accused provoked by a wrongful act or insult?
- Insult = "injuriously contemptuous speech or behaviour, scornful utterance, or action intended to wound
self-respect; an affront; indignity" (Thibert).
- Under s 232(3) of the Criminal Code, an act shall not be deemed to constitute provocation if the act was
one that:
o (a) The victim had a legal right to do, such as in self-defence: R. v. Haight.
 Sanctioned by law. Thibert, just because "insults" are not specifically prohibited, that
does not mean that a person has "a legal right" to insult others.
o (b) The accused incited the victim to do in order to give the accused an excuse to cause bodily
harm or death.
2. Was the wrongful act or insult sufficient to deprive an ordinary person of the power of self-control [objective
test]?
- The test is not whether an ordinary person under the provocative circumstances would have done exactly
what the accused did, but rather whether an ordinary person may have lost the power of self-control
under such provocative circumstances: R. v. Carpenter
o Must be an objective, reasonable person test (Factors from Hill).
o (1) The ordinary or reasonable person is D’s age and sex, has a normal temperament and level of
self-control, and is not exceptionally excitable or pugnacious, and is not drunk
o (2) Other general characteristics relevant to the gravity of the wrongful act or insult may be
considered (e.g. if the insult was racial, the reasonable person should be of accused’s race)
o (3) The level of self-control expected varies with age, but not with any other characteristics.
o The background relationship between D and the victim may also be considered (Thibert).
- Bedder – should be objective approach
- Camplin – Can look at particular characteristics of accused, age
- R v. Thibert – Ordinary person is same age, sex, shares similar factors, background relevant
- Ordinary person must be from the cultural background to whom the accused belongs (Nahar)
- It is against good criminal law policy to allow an individual to base a provocation on beliefs that are
antithetical to fundamental Canadian values. (Humaid)
- The cultural background of the accused is not a relevant consideration generally. (Ly)
3. Was the accused acting in response to the wrongful act or insult on the sudden and before there is time for
his/her passion to cool (i.e. regain his/her self-control) [subjective test]?
- This is not met if A insults B, B goes away to “brood” on the matter, and later kills A (Salamon v the
Queen, Tripodi)
- Even a few minutes may be enough time to "cool". Frisen defence based on alleged homosexual
advance failed since the accused’s acts were not “on the sudden before there was time to cool.
- The question is whether D formed the intent to kill while in the state of rage resulting from the insult,
not before or after. Premeditation can be relevant here. (Thibert, Cameron)
o In Thibert the fact that the accused had stalked his wife, loaded his gun, and removed his gun
from the trunk of his car show lack of suddenness
Self Defence
1. What type of harm do you apprehend (Pawliuk)?
- Harm to self, other then death or GBH then Section 34(1) applies
- Death or GBH to self then Section 34(2) applies
- Harm to another person under you protection, then Section 37 applies
Section 34(1)
- (1) The accused must reasonably believe that she is subject to an unlawful assault
- (2) The accused must not have provoked the assault (including words/blows/gestures – CC s. 36)
- (3) The accused must not have intended death or grievous bodily harm
- (4) The force used by accused must be not have been more than necessary to defend himself against
the unlawful assault.
- No retreat requirement, proportionate force (objective)
Section 34(2)
- (1) The accused must reasonably believe that she is subject to an unlawful assault or can be a reasonable
but mistaken belief (Petel)
o Lavallee said can use expert evidence to establish that battered woman’s response was
reasonable (Malot). Must apply contextual approach which considers past conduct although it is
still objective look at history, circumstances, perceptions of the person pleading it (Petel)
o Apprehension of imminent danger is not required (Lavallee) This alleged rule does not appear
anywhere in the CC and is only an assumption based on common sense (Petel).
- (2) The accused must be under a reasonable apprehension of D/GBH from the attacker;
- (3) The accused must reasonable believe that there was no alternative but to respod as she did.
o The accused could have provoked the assault (McIntosh)
o The accused could have (though not need to) intend death or grievous bodily harm
- Each of the elements must have both a subjective and objective component (Cinous)
- No retreat requirement
- Higher degree of force then Section 34(1) and 37, is objective assessment
Section 37
- The accused must reasonably believe that the person under her protection is subject to an unlawful
assault.
- The force used must be no more than is necessary to prevent the assault or repetition of the assault.
- The willful infliction of any hurt or mischief must not be excessive, having regard to the nature of the
assault that the force used was intended to prevent.
o Note that the accused could have provoked the attack.
o Note that the accused could have (though need not have) intended death or grievous bodily harm.
- Although the statute only refers to “any one under his protection”, this has been interpreted as “anyone
who requires protection which the accused may be able to provide” (i.e. any 3P) (Webers)
- This should only be applied where ss. 34 and 35 don’t apply (“gap-filling role”) (McIntosh)
- No retreat requirement, proportionate force (objective)
Section 35
- “Virtually useless” [– Prof. Tollefson]. Stricter than s. 34(2), applies to initial aggressors.
- When in one's home, there is no obligation to retreat or flee to apply this defence. (Lavallee)
- Puts a positive duty to retreat