



WARNING

The President of the panel hearing this appeal directs that the
    following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the victim or a witness shall not be published in any document or broadcast or
    transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271,
    272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346
    or 347, or

(ii)      any offence under this Act, as it read at any time before
    the day on which this subparagraph comes into force, if the conduct alleged
    involves a violation of the complainants sexual integrity and that conduct
    would be an offence referred to in subparagraph (i) if it occurred on or after
    that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December
    6, 2014 (Act, s. 49).

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)     In proceedings in respect of the offences referred to in
    paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity, inform any witness
    under the age of eighteen years and the victim of the right to make an
    application for the order; and

(b)     on application made by the victim, the prosecutor or any
    such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice may make an order
    directing that any information that could identify the victim shall not be
    published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under section 163.1,
    a judge or justice shall make an order directing that any information that
    could identify a witness who is under the age of eighteen years, or any person
    who is the subject of a representation, written material or a recording that
    constitutes child pornography within the meaning of that section, shall not be
    published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not apply in respect
    of the disclosure of information in the course of the administration of justice
    when it is not the purpose of the disclosure to make the information known in
    the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5;
    2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with an order made
    under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. H.W., 2022 ONCA 15

DATE: 20220113

DOCKET:
    C68189

Hourigan,
    Paciocco, and Zarnett JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

H.W.

Respondent

Jamie Klukach and Holly Loubert, for
    the appellant

James Lockyer and Jessica Zita, for
    the respondent

Heard:

June 21, 2021 by video
    conference

On appeal from the acquittal entered by Justice Sean F. Dunphy of
    the Superior Court of Justice, sitting with a jury, on February 18, 2020.

Zarnett J.A.:

OVERVIEW

[1]

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
    complainants consent to the sexual activity  is to be considered when the
    accused has no defence of honest but mistaken belief in communicated consent.

[2]

It was not in dispute at trial that the
    complainant and respondent had engaged in sexual activity. The complainant
    testified that she did not consent; the respondents position was that the
    complainant did consent and that her evidence that she did not consent was not
    credible. He gave evidence that included why he believed, from their
    interaction, that she was consenting.

[3]

Prior to instructing the jury, the trial judge
    conducted a pre-charge conference. At it, the parties agreed, and the trial
    judge accepted, that if the jury was satisfied that the complainant had not
    consented to the sexual activity, there was no air of reality to a defence of
    honest but mistaken belief in communicated consent. Accordingly, the defence
    would not be left with the jury.

[4]

The trial judge indicated that he proposed to
    instruct the jury that to convict, they had to be satisfied beyond a reasonable
    doubt on four elements: (a) that there had been intentional touching, (b) of a
    sexual nature, (c) without the complainants consent, and (d) that the
    respondent knew of, or was wilfully blind or reckless as to, the absence of the
    complainants consent (the knowledge element).

[5]

The Crown objected to the fourth element  the knowledge
    element  being left with the jury, on the basis that if the jury was satisfied
    on the first three elements, there was nothing further for the jury to
    consider. As the defence of honest but mistaken belief in communicated consent
    was not available to the respondent, he could not have had a non-culpable
    mental state and the knowledge element should have been treated as satisfied.

[6]

The trial judge rejected the Crowns position.
    He instructed the jury that they had to be satisfied beyond a reasonable doubt
    on each of the four elements. He provided summaries of evidence relevant to the
    first three elements, including the respondents evidence of his perception of
    the complainants conduct and why he viewed that as her consent. On the knowledge
    element, he told the jury to consider all of the evidence, including the
    evidence he had summarized on the other elements.

[7]

On appeal, the Crown argues that it was an error
    to leave the knowledge element with the jury at all, or, alternatively, in the
    manner that it was left.

[8]

First, the Crown submits that the knowledge element
    of the offence is co-extensive with the defence of honest but mistaken belief
    in communicated consent, and that if the defence is not available to the
    accused, there is no room for reasonable doubt about the accuseds knowledge of
    the complainants non-consent. The Crown argues that when there is no air of
    reality to a defence of honest but mistaken belief in communicated consent,
    the jury should be instructed that guilt is established if they are satisfied
    beyond a reasonable doubt that the accused intentionally touched the
    complainant in circumstances of a sexual nature, without her consent.

[9]

Second, and in the alternative, the Crown argues
    that even if the knowledge element may be left with the jury when the defence
    of honest but mistaken belief in communicated consent is unavailable to the
    accused, that unavailability will in most cases be practically conclusive on
    the knowledge element, and that it was in this case. The jury should have been
    told this. Inviting the jury to consider all of the evidence to determine
    whether there was knowledge of non-consent without further guidance as to what
    they could and could not consider on this issue risked the jury considering
    irrelevant matters and engaging in impermissible forms of reasoning.

[10]

The respondent submits that the knowledge
    element of the
mens rea
requirement for sexual assault is part of the
    Crowns burden as a matter of law, and that this burden is not contingent on
    the presence of the defence of honest but mistaken belief in communicated
    consent. He argues that the trial judge was bound to charge on the need for the
    Crown to prove the knowledge element as part of the
mens rea
. He also
    argues that if there was an error, it could not have affected the verdict.

[11]

I agree with the respondent 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 complainants non-consent, even where the defence of honest
    but mistaken belief in communicated consent was unavailable to the respondent. In
    my view, the argument that the unavailability of the defence equates with proof
    by the Crown of the knowledge element must be rejected in light of
R. v.
    Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3 and
R. v. Carbone
,
    2020 ONCA 394, 150 O.R. (3d) 758. There are important reasons of principle to legally
    distinguish the unavailability of a defence from proof of the Crowns case even
    in situations where there is little practical difference between them. The
    Supreme Court has, since
Morrison
, repeated that proving the knowledge
    element is part of the Crowns burden in a charge of sexual assault.

[12]

But I agree with the Crown that in the
    circumstances, the trial judges 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.

[13]

The instruction in this case did not do so. It did
    not instruct the jury that the respondents 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.

[14]

The lack of a proper instruction may reasonably
    have affected the verdict. I would allow the appeal, set aside the
    acquittal, and direct a new trial.

THE CIRCUMSTANCES OF
    THE SEXUAL ACTIVITY

[15]

The complainant and the respondent were both
    guests at a wedding and at the reception that followed it. They had not met
    before the wedding. The respondent testified that he had approximately nine or
    ten alcoholic drinks over the course of that afternoon and evening.

[16]

The complainant testified that she had no
    interaction with the respondent at the wedding or reception until, toward the
    end of the evening, she was waiting in a hallway to use one of the individual
    bathrooms. The respondent, who was in one of those bathrooms, opened the door
    and pulled her in, which surprised and confused her. She introduced herself,
    but he did not respond or answer her when she asked who he was.
He proceeded to penetrate her orally, vaginally, and anally
    with his penis. She described herself as being in a state of shock, confusion,
    and disassociation, unable to process what was happening or understand how such
    a violent act could take place at a family wedding.
She asked him a series
    of questions concerning who he was, what was going on, and how she got there.
    He did not answer. She also asked whether they were related, whether he was
    married, and whether he was related to the bride. He said that he was not
    married, they were not related, and that he was related to the bride. When he
    was finished anally penetrating her, he left the bathroom without saying
    anything further to her.

[17]

The respondent testified that he met the complainant
    briefly at the wedding ceremony, but they did not engage in conversation.
    Around midnight, he had a 15-minute conversation with her near the washrooms
    that was neither romantic nor sexual. When he went to use one of the bathrooms,
    the complainant followed him, cut in front of him, and backed into the
    bathroom, looking at him and smiling. They began to kiss; she dropped to her
    knees and he undid his pants. She performed oral sex on him. When he lost
    interest in oral sex and stepped back, she stood up, turned around, and looked
    back at him smiling. He pulled up her dress, pulled down her underwear, and
    penetrated her vagina with his penis. After vaginal intercourse, he stopped and
    left the bathroom without saying anything to the complainant.

[18]

The respondent explained that he took the
    complainants initial eye contact and smile as an invitation to join her in the
    bathroom, and believed, after they had oral sex and she stood up, turned around,
    and looked at him smiling, that this was an invitation to have sexual
    intercourse. The respondent assumed that the complainant consented to the
    sexual activity based on her eye contact and smiles. He agreed that at no point
    did the complainant verbally communicate consent. The only conversation that
    occurred inside the bathroom, according to the respondent, was that she twice
    asked if they were related, to which he replied no.

THE JURY CHARGE, THE
    JURYS QUESTION, AND THE ACQUITTAL

[19]

At a pre-charge conference, the defence and
    Crown agreed that there was no air of reality to a defence of honest but
    mistaken belief in communicated consent. They disagreed as to whether the
    fourth element of sexual assault  whether the accused knew that the
    complainant did not consent  should be put to the jury. The Crowns position
    was that the jury should not be directed that the Crown had to prove beyond a
    reasonable doubt that the respondent knew the complainant was not consenting.

[20]

The trial judge did not accept the Crowns
    position, based on his reading of recent Supreme Court of Canada jurisprudence,
    including
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579. He
    instructed the jury as follows:

For you to find [the respondent] guilty of
    sexual assault, Crown counsel must prove each of these essential elements
    beyond a reasonable doubt:

a.

That [the respondent] intentionally touched [the
    complainant];

b.

That the touching took place in circumstances of
    a sexual nature;

c.

That [the complainant] did not consent to the
    sexual activity with [the respondent] in question; and

d.

That [the respondent] knew that [the complainant]
    did not consent to that sexual activity.

[21]

On the first two elements (elements (a) and (b)
    above)  whether intentional sexual touching took place  the trial judge
    reminded the jury that both the complainant and the respondent testified that
    there was contact of a sexual nature between them. He told the jury that
    although there were differences in their testimony as to what sexual touching
    occurred (for example, the complainant described anal sex and the respondent
    denied it), each type of sexual touching they described was capable of
    supporting these two elements of the charge. He told the jury that it was for
    them to decide which of the incidents of sexual touching had occurred, as all
    of the essential elements of the offence had to be considered for each incident
    they found to have in fact occurred.

[22]

The trial judge then summarized the evidence
    relating to each alleged incident of sexual touching. While doing so, the trial
    judge made reference to the respondents evidence that the complainant got down
    on her knees in a gesture that he understood to be an invitation to undo his
    pants, that he interpreted her standing, turning, and smiling at him as an
    invitation to have sex with her, and that he had no doubt that she wanted him
    to engage in sex with her.

[23]

On the third element (element (c) above  whether
    the complainant consented to the sexual activity with the respondent), the
    trial judge set out the definition of consent as the voluntary agreement of the
    complainant to engage in the particular sexual activity. He instructed the jury
    that a complainant is not obliged to express lack of consent by words or conduct,
    and that silence or lack of resistance did not constitute consent. He cautioned
    the jury about falling prey to common stereotypes and myths concerning sexual
    assault and sexual assault victims.

[24]

The trial judge told the jury that when dealing
    with this third element, they were to be concerned solely with the
    complainants subjective state of mind  whether she in fact consented to the
    sexual activity in question. He added that the respondents knowledge and
    appreciation of that question will be considered under the next essential
    element [i.e. the knowledge element] below.

[25]

He then provided a review of the evidence of the
    respondent and the complainant as to what had occurred, adding the observation
    that credibility was central to the issue of whether the complainant consented.
    While providing that review, he referred to the respondents evidence that she
    subsequently stood up, placed her hands upon the counter and turned around to
    look at him and smile. He inferred from these gestures and the fact that she
    had initiated oral sex a moment earlier that she was inviting him to have
    vaginal sex with her and consenting to his doing so.

[26]

With respect to the knowledge element (element
    (d) above  whether the respondent knew that the complainant did not consent), the
    trial judge instructed the jury that if they were considering that element, it
    was because they were satisfied that the prior elements of the charge had been
    established beyond a reasonable doubt. He told the jury:

This last element requires you to consider [the
    respondents] state of mind in relation to the sexual activity in question.
    Crown counsel must prove beyond a reasonable doubt that [the respondent] was
    aware that [the complainant] did not consent to the sexual activity in question
    when he touched her.

To prove that [the respondent] was aware of [the
    complainants] lack of consent, the Crown must prove one of the following:

a.

That [the respondent] knew that [the complainant]
    did not consent to the activity in question; or

b.

That [the respondent] knew that there was a risk
    that [the complainant] did not consent to the sexual activity in question and [the
    respondent] proceeded in the face of that risk; or

c.

That [the respondent] was aware of indications
    that [the complainant] did not consent to the sexual activity in question, but
    deliberately chose to ignore them because he did not want to know the truth.

[27]

The trial judge did not provide a separate
    summary of the evidence regarding the knowledge element. He told the jury that
    they must review all of the evidence, including the evidence he had previously
    summarized, to answer the question of [the respondents] state of mind at the
    time that he engaged in the sexual activity with [the complainant]. He invited
    the jury to consider all of the evidence concerning the words exchanged
    between the [complainant and respondent] and their actions immediately prior
    to, during and immediately after the incident of sexual touching. He told the
    jury that the same evidence that he had previously summarized is relevant to
    your review of this last essential element. He concluded:

If you have a reasonable doubt about whether [the
    respondent] knew that [the complainant] did not consent to the sexual activity
    in question, then you must find [the respondent] not guilty of the crime of
    sexual assault as charged in the indictment.

If you are satisfied that the Crown has proved
    beyond a reasonable doubt that [the respondent] knew that [the complainant] was
    not consenting to the sexual activity in question, you must find [the
    respondent] guilty of the crime of sexual assault as charged in the indictment.

[28]

After some deliberation, the jury returned with
    a question: Can a person be so intoxicated that they cannot know of a risk of
    non-consent or [i]f we believe that a person is drunk enough to not consider
    the risk of non-consent would we then be required to not convict or acquit the
    charges?

[29]

The trial judge provided the jury with the
    following response: In answer to your question about consent, drunkenness is
    not a defence unless it rises to a level known to the law as automatism, and
    there is no evidence of automatism in this case.

[30]

After further deliberation, the jury acquitted
    the respondent.

THE ISSUES

[31]

The appeal raises two issues:

a)

Was there an error in the way the jury was instructed?

b)

If there was an error, was it of sufficient significance to warrant
    setting aside the acquittal and directing a new trial?

[32]

On the first issue  whether there was an error
    in the jury charge  a distinction should be noted between the Crowns two
    submissions. The Crowns first submission is that, in a case where the defence
    of honest but mistaken belief in communicated consent is unavailable, the jury
    should not be told that the Crown has the burden of proving the knowledge
    element. Rather, the jury should be instructed that guilt is established if
    they are satisfied beyond a reasonable doubt that the accused intentionally
    touched the complainant in circumstances of a sexual nature, without her
    consent. If the first submission fails, the second submission is about what else
    the jury must be told after it is told the Crown has the burden of proving the
    knowledge element.

[33]

In other words, the first submission locates the
    error in the portion of the charge that describes the Crown as having the
    burden of proving the knowledge element in a case where there is no air of
    reality to a defence of honest but mistaken belief in communicated consent. It
    posits that it is legally wrong to describe the Crown as having that burden in
    such a case. The second submission locates the error in the portion of the
    charge that follows; that is, in the portion that tells the jury how they
    should approach and what they should consider when determining whether the knowledge
    element is satisfied.

ANALYSIS

(1)

The Trial Judge Did Not Err in Instructing the
    Jury That the Crown Was Required to Prove the Knowledge Element Because That Is
    a Correct Legal Description of the Crowns Burden

(a)

Elements of an Offence and Jury Charges

[34]

A charge to a jury is aimed at ensuring that
the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the evidence
    they should consider in resolving the issues:
R. v. Cooper
,
    [1993] 1 S.C.R. 146, at p. 163
;
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523, at para. 32. As a result, the legal components of the offence properly
    inform what is in the charge.

[35]

However, jury charges are meant to give jurors a
    functional understanding of what is required to adjudicate the actual issues in
    the specific case:
R. v. Rodgerson
, 2015 SCC 38, [2015] 2
    S.C.R. 760, at paras. 50-52;

R. v. Doucette
, 2015
    ONCA 583, 337 O.A.C. 109, at para. 24. It follows that a jury charge need not
    include reference to elements of an offence that are not in issue:
R. v.
    MRS
, 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 109. As was explained in
    David Watt,
Watts Manual of Criminal Jury Instructions
, 2nd ed.
    (Toronto: Carswell, 2015) at Authors Note, p. xlix:

Instructions on subjects that are not in issue
    should be avoided. To go where instruction is not required deflects the
    attention of the jury from the real issues, blurs the focus of the trial and
    risks jury confusion. The judges role is to decant and simplify, as much with
    reference to legal principles as to a review of the salient features of the
    evidence. Jury charges are not lectures to law students. Every chapter and
    every verse of an instruction may not be necessary because some elements or
    aspects of it are not in issue. The purpose of jury instructions is to inform
    the decision-maker to make an informed decision in the case they are trying.
    Nothing more. And nothing less.

(b)

The Legal Components of the Offence of Sexual Assault

[36]

In the case of a charge of sexual assault under
    s. 271 of the
Criminal Code
, R.S.C. 1985, c. C-46, the Crown must
    prove beyond a reasonable doubt that the accused committed the
actus reus
of the offence and had the necessary
mens rea
:
Barton
, at
    para. 87.

[37]

The Supreme Court of Canada has consistently formulated
    the
mens rea
of the offence as including the knowledge element  the requirement
    that the accused knew of, was wilfully blind to or was reckless about, the
    absence of the complainants consent to the sexual activity. The accused must
    have intentionally touched the complainant knowing of, or being reckless of or
    wilfully blind to, a lack of consent on the part of the person touched:
Barton
,
    at para. 87;
R. v. J.A.
, 2011 SCC 28, [2011] 2 S.C.R. 440, at
    para. 24; and
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 118.

[38]

The Crowns burden to prove the contents of the
actus
    reus
and the
mens rea
of sexual assault, including the knowledge
    element, were most recently described by Karakatsanis J. in
R. v. G.F.
,
    2021 SCC 20, 459 D.L.R. (4th) 375, at para. 25 as follows:

The
actus reus

of sexual assault requires the Crown to establish three things: (i)
    touching; (ii) of an objectively sexual nature; (iii) to which the complainant
    did not consent ...
At the
mens rea
stage, the
    Crown must show that (i) the accused intentionally touched the complainant; and
    (ii) the accused knew that the complainant was not consenting, or was reckless
    or wilfully blind as to the absence of consent
. [Citations omitted,
    emphasis added].

[39]

Because these are the legal components of the
    offence of sexual assault, on which the Crown bears the burden, a jury would
    ordinarily be told this to understand the issues involved [and] the law
    relating to the charge the accused is facing:
Cooper
, at p. 163. These
    components, including the requirement that the Crown prove the knowledge
    element, are accordingly reflected in the two model jury instructions commonly
    used in Canada:
Watts Manual of Criminal Jury Instructions
, at Final 271, and the Canadian Judicial Council
,
    Model Jury Instruc­tions  Offence 271: Sexual Assault (May 2019), online:
National
    Judicial Institute

<www.nji-inm.ca/index.cfm/publications/model-jury-instructions/offences/sexual-offences/offence-271-sexual-assault/>.
    Both model instructions start from the implicit premise that the knowledge
    element is part of the Crowns burden in all cases. The Watt model varies the
    instruction on the knowledge element component when the defence of honest but
    mistaken belief in communicated consent has an air of reality to it; the CJC
    model instruction adds an additional instruction on the defence of honest but
    mistaken belief in communicated consent when there is an air of reality to the
    defence. Neither contemplates deleting the knowledge element component as part
    of the instruction if there was no air of reality to the defence.

[40]

However, the Crowns first submission is that the
    Crowns burden to prove the knowledge element in a charge of sexual assault is inapplicable
    if the defence of honest but mistaken belief in communicated consent is not
    available to the accused. On this argument, the knowledge element is simply not
    in issue whenever the defence is not available, and it is an error for the jury
    to be instructed that the Crown has a burden to prove it.

[41]

I begin the analysis of that submission with a
    review of the nature of the inquiry into knowledge of lack of consent at the
mens
    rea
stage of the analysis and the nature of the defence of honest but
    mistaken belief in communicated consent
.
I then turn to the Crowns
    submission about the effect of the overlap between the two.

(c)

Mens Rea
and
    Consent

[42]

Central to both the
actus reus
and the
mens
    rea
for sexual assault is the issue of consent, the foundational
    principle upon which Canadas sexual assault laws are based:
G.F.
, at
    para. 1.

[43]

The
Code
defines consent for the
    purpose of sexual assault. Under s. 273.1(1) of the
Code
, consent
    means the voluntary agreement of the complainant to engage in the sexual
    activity in question. It means the conscious agreement of the complainant to
    every sexual act in a particular encounter:
J.A.
, at para. 31. Section
    273.1(2) of the
Code
contains a non-exhaustive list of circumstances
    in which consent is not obtained, while s. 273.1(3) authorizes the courts to
    identify additional cases in which no consent is obtained, in a manner
    consistent with the policies underlying the provisions of the
Criminal Code
:
J.A.
, at para. 29.

[44]

Consent, so defined, is analyzed from a
    different perspective at the
mens rea
stage than it is for the purpose
    of determining whether the
actus reus
was committed:
Barton,
at para. 89.

[45]

At the
actus reus
stage of the analysis,
    the absence of consent is determined solely by reference to the complainants
    subjective internal state of mind towards the touching, at the time it
    occurred:
R. v. Ewanchuk
,
[1999] 1 S.C.R. 330, at para. 26;
G.F.
, at para. 25. The question
    is solely whether the complainant, in her mind, wanted sexual touching to take
    place. Whether or not the accused thought or perceived that the complainant was
    consenting is irrelevant to whether the
actus reus
occurred:
Barton
,
    at para. 89.

[46]

The
mens rea
stage of the analysis is typically
    reached after the trier of fact has concluded that the
actus reus
has
    been committed. In the sexual assault context, this means that the trier of
    fact has concluded that touching of a sexual nature occurred, and that the
    complainant did not actually, subjectively, consent within the meaning of the
Code
to that sexual touching. The focus then shifts to the accuseds mental state,
    the question being whether the accused knew of, or was wilfully blind or
    reckless as to, that lack of consent:
Barton
,
at para. 87.

(d)

The Defence of Honest but Mistaken Belief in
    Communicated Consent

[47]

[T]he common law recognizes a defence of mistake
    of fact which removes culpability for those who honestly but mistakenly
    believed that they had consent to touch the complainant:
Ewanchuk
, at para. 42. The defence is a negation
    of guilty intention, rather than an affirmative defence

it is a denial of
mens rea
:
Ewanchuk
, at paras. 43-44.


[48]

The
defence
    requires that the accused had an honest but mistaken belief that the complainant
    actually
communicated
consent, whether by words or conduct:
Barton
, at para. 91 (emphasis in original). From a
    practical standpoint, the principal relevant considerations are the
    complainants behaviour which is said to have involved communication and the
    admissible and relevant evidence explaining how the accused
perceived
that
    behaviour to communicate consent:
R. v. Park
, [1995] 2 S.C.R. 836, at para. 44 (emphasis in
    original);
Barton
, at para. 91.

[49]

The defence is
    limited both by the common law and by provisions of the
Code
that
tightly restrict the range of mistaken
    beliefs an accused may lawfully hold about the complainants consent:
G.F.
,
    at para. 1;
J.A.
, at para. 24. As a result,
[n]ot all beliefs upon which an accused might rely
    will exculpate him:
Ewanchuk
, at para. 50.

[50]

For example, mistakes as to what amounts in law to
    consent

for example, a mistaken
    belief that no, or silence, or lack of resistance, meant yes

do not engage the defence:
Barton
, at paras. 98-100.

[51]

Moreover, s. 273.2 of the
Code
imposes additional
    restrictions on the applicability of the defence. It provides that a belief in
    consent that arose in certain ways will be unavailing. It imposes a
    precondition of reasonable steps to ascertain consent  no reasonable steps,
    no defence:
Barton
, at para. 104. And it requires evidence of words
    or conduct by which the complainant expressed consent. Section 273.2 provides:

It is not a defence to a charge under
    section 271, 272 or 273 that the accused believed that the complainant
    consented to the activity that forms the subject-matter of the charge, where


(a)

the accuseds belief arose from


(i)

the accuseds self-induced intoxication,


(ii)

the accuseds recklessness or wilful blindness,
    or


(iii)

any circumstance referred to in subsection
    265(3) or 273.1(2) or (3) in which no consent is obtained;


(b)

the accused did not take reasonable steps, in
    the circumstances known to the accused at the time, to ascertain that the
    complainant was consenting; or


(c)

there is no evidence that the complainants
    voluntary agreement to the activity was affirmatively expressed by words or
    actively expressed by conduct.

[52]

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 it. If there is no air of reality to the defence,
    it is not left with the jury. If there is, the onus is on the Crown to negative
    the defence. If the Crown fails to do so, the accused is entitled to an
    acquittal. The Crown might disprove the defence by, for example, proving beyond
    a reasonable doubt that the accused did not take reasonable steps to determine
    whether the complainant was consenting or that the accuseds mistaken belief was
    not honestly held:
Barton
, at paras. 121-23.

(e)

The Effect of the Overlap Between the
Mens
    Rea
Requirement and the Defence

[53]

The Crowns first submission that, in a case where
    the defence of honest but mistaken belief in communicated consent is
    unavailable, the Crowns burden to prove the knowledge element of the
mens
    rea
requirement is inapplicable, is grounded in the significant overlap
    between the two. As the Crown puts it at various points in their factum, 
[m]ens
    rea
with respect to non-consent becomes a contentious issue only when
    there is an air of reality to mistaken belief; there is symmetry between
    knowledge of non-consent and mistaken belief in consent; [t]he only
    non-culpable mental state for sexual assault is honest mistaken belief in
    communicated consent; [w]hen the defence is unavailable, it follows that the
    accused knew or was wilfully blind or reckless to the absence of consent; [k]nowledge
    of non-consent, a component of the
mens rea
for sexual assault, is
    established when the defence of mistaken belief in consent is unavailable; and
    knowledge of non-consent is a non-issue without mistaken belief.

[54]

The Crowns first submission may be perceived as
    representing the state of the law prior to
Morrison
. As Professor Hamish
    Stewart noted in Fault and Reasonable Steps: The Troubling Implications of
Morrison
and
Barton
 (2019) 24 Can. Crim. L. Rev. 379, at p. 381:

The case law and commentary before
Morrison
strongly suggest that a reasonable steps requirement, as it applies to an
    offence that otherwise requires proof of knowledge of an inculpatory fact,
    creates an alternative route by which the Crown can prove the fault element of
    the offence. Instead of proving that the accused knew the inculpatory fact, the
    Crown could prove fault by proving that the accused failed to take reasonable
    steps, in the circumstances known to him at the time, to ascertain the
    exculpatory fact.

[55]

The view found support, for example, in a
    passage in
R. v. George
, 2017 SCC 38, [2017] 1 S.C.R. 1021. In
    that case, speaking of the offence of sexual interference contrary to s. 151 of
    the
Criminal Code
, which is subject to a statutory mistaken belief in
    age provision in s. 150.1(4), Gascon J. said, at para. 8:

[T]o convict an accused person who
    demonstrates an air of reality to the mistake of age defence, the Crown must
    prove, beyond a reasonable doubt, either that the accused person (1) did not
    honestly believe the complainant was at least 16 (the subjective element); or (2)
    did not take all reasonable steps to ascertain the complainants age (the
    objective element). [Citations omitted.]

[56]

Moreover, the Crown argues that the view is
    supported by sexual assault cases where there was no air of reality to a defence
    of honest but mistaken belief in communicated consent, and convictions were
    upheld even though the jury was instructed to consider only whether the accused
    had engaged in intentional touching of a sexual nature without the
    complainants consent: see, e.g.,
R. v. Robertson
, [1987] 1
    S.C.R. 918.

[57]

On the latter point, I note that it does not
    necessarily follow that because a jury could be properly instructed in a
    particular case without reference to the knowledge element, it is always an
    error to instruct the jury by making reference to the knowledge element. Jury
    charges are reviewed functionally. There can be more than one adequate way to
    instruct a jury. And the reasons in
Robertson
make it clear that the
    issue the court decided was whether the defence of honest but mistaken belief
    in communicated consent was to be left with the jury, as Wilson J. defined the
    issue to be: Should the trial judge, in every sexual assault case, instruct
    the jury to consider whether the accused had an honest, though mistaken, belief
    in consent?:
Robertson
, at p. 929. She concluded that the trial judge
    did not err in instructing the jury without reference to the defence of honest
    but mistaken belief in consent as there was no air of reality to the defence:
Robertson
,
    at p. 940.

[58]

However, I need not resolve whether, prior to
Morrison
,
    a finding that the knowledge element was satisfied followed automatically, as a
    matter of law, from the failure of the accused to take reasonable steps to
    determine whether a complainant was communicating consent, or from the presence
    of another legal impediment to the defence. I am persuaded that in light of
Morrison

and developments since, it is not the law now.

[59]

I reach this conclusion for three closely
    related reasons. First,
Morrison
affirmed as a bedrock principle of
    criminal law, grounded in the presumption of innocence, that the negation of a
    defence and the establishment of the Crowns case have a well-accepted
    theoretical and legal difference. This difference is to be respected even in
    cases where there is little practical difference between the negation of a
    defence and the affirmative establishment of the Crowns burden.
Morrison
expressly counselled against reading the passage from
George
referred
    to above in a way that would sweep away that bedrock principle. Second, the
    knowledge element is part of the
mens rea
requirement formulated by
    the Supreme Court, including in cases that post-date
Morrison
. It is
    thus an essential legal element of the offence and one on which the Crown bears
    the burden. That legal formulation is not expressed in terms that support the
    conclusion that the knowledge element is an essential element of the offence only
    if the defence of honest but mistaken belief in communicated consent is in
    play. Third, the symmetry between the knowledge element and the defence that
    the Crown asserts, although extensive, is not complete, since, as the Crown
    concedes, it is possible to envisage situations when knowledge of non-consent
    is an issue that do not involve belief in consent.

(i)

Morrison
Holds That Negativing a
    Defence Is Not the Same as Proving the Crowns Case

[60]

Morrison
established that the Crown negativing a defence is not legally synonymous with
    the Crown discharging its positive burden to prove its case: at para. 129; see
    also
Carbone
, at paras. 120-21. That legal burden remains, even if the
    displacement of a defence (or its unavailability) makes conviction a virtual
    certainty and if, for practical purposes in most cases, there is little
    distance between negativing a defence (or its unavailability) and proving the
    requisite
mens rea
:
Morrison
, at para. 88;
Carbone
,
    at para. 121. This proposition is fundamentally irreconcilable with the Crowns
    first submission.

[61]

At issue in
Morrison
were the child
    luring provisions under s. 172.1 of the

Code
. Section 172.1(1)(b) prohibits certain specified internet
    communications with a person whom the accused believes is under the age of 16.
    Section 172.1(4) provides a defence to child luring if the accused believed
    that the person was 16 or over. However, this defence is not available
    unless the accused took reasonable steps to ascertain the age of the
    complainant.

[62]

The majority of the Supreme Court in

Morrison

concluded that the failure by the
    accused to satisfy the reasonable steps requirement does not provide a second
    pathway to conviction; it merely limits a defence: at paras. 80, 82, 84 and 126.
    In other words, while the reasonable steps requirement imposes an evidentiary
    burden on the accused, the Crown still bears the ultimate persuasive burden:
Morrison
,
at paras. 84, 116 and 121. As a matter of law, an accused cannot be convicted
    simply for failing to establish a defence. The Crown must negate any defence
    that is raised and also show that all of the essential elements of the offence
    were proved:
Morrison
, at para. 90. Whether the accused is convicted
    or acquitted depends not on whether the accused has made out their defence, but
    on whether the Crown has proved all of the essential elements of the offence,
    including the applicable
mens rea
:
Morrison,
at paras. 116,
    126. If the Crown proves that reasonable steps were not taken, the trier of
    fact cannot consider the defence that the accused believed the person was of
    legal age. But that does not relieve the Crown from its burden to prove, beyond
    a reasonable doubt, that the accused believed the person was not of age:
Morrison
,
    at paras. 83, 124.

[63]

In

Carbone
, at paras. 92 and 116-20, Doherty

J.A.

concluded
    for this court that even though in speaking for the

Morrison

majority,

Moldaver

J.
    was careful to restrict his reasons to the crime of internet luring relating to
    a person the accused believed to be under 16,
the
comments

he

made
    compel the same conclusion with respect to the offence of invitation to sexual
    touching contrary to s. 152 of the

Criminal Code
.

Based on those comments, Doherty J.A. held that even where an
    accused is not entitled to a mistaken belief in age defence, the Crown is still
    required to prove that the accused believed the complainant was underaged.

[64]

Specifically, Doherty J.A. noted that although Moldaver
    J. stopped short of overruling
George
,

he disapproved of the
    statement in it relating to
mens rea
, quoted above in para. 55, that
    where there is an air of reality to the mistake of age defence, the Crown must
    prove
either
the subjective
knowledge
element of the offence or an
    absence of reasonable steps:
Carbone
, at para. 117. Moldaver J. commented
    that the passage in question ought not to be interpreted in a way that would
    sweep aside a bedrock principle of our criminal law namely the obligation of
    the Crown not only to negate a defence, but to show, on the evidence as a
    whole, that all of the essential elements of the offence in question have been
    proved beyond a reasonable doubt:
Morrison
,

at paras. 90-91. It
    bears noting that the bedrock principle that the Crown must prove the
    elements of an offence is a constitutionally-protected component of the
    presumption of innocence:

R. v.  Oakes
, [1986] 1 S.C.R. 103, at pp. 120-21;
Morrison
, at para. 85.

[65]

In a child luring case, if the Crown proves that
    reasonable steps were not taken, the trier of fact cannot consider the defence
    that the accused believed the person was of legal age. But that does not
    relieve the Crown of its burden to prove, beyond a reasonable doubt, that the
    accused believed the person was not of age:
Morrison
, at paras. 83,
    124. Even where the defence is unavailable, the evidence as a whole may still
    leave gaps in the Crowns case that could give rise to a reasonable doubt as to
    whether the Crown has discharged their evidentiary burden with respect to
mens
    rea
:
Morrison
, at para. 121.

[66]

This courts decision in
Carbone

made
    clear that the positive duty on the Crown to prove each element of the offence
    beyond a reasonable doubt extends beyond the offence of child luring. The court
    set out the following steps that a trier of fact should follow when considering
    the offence of invitation to sexual touching, contrary to s. 152 of the
Code
.
    First, the trier must determine whether there is an air of reality to the
    defence established in s. 150.1(4) (belief that the complainant was 16 or
    older, a defence which is only available if the accused took all reasonable
    steps to ascertain age). If there is no air of reality to the defence, any
    claim that the accused believed the complainant was at least 16 must be
    removed from the evidentiary mix. The trier of fact must then still proceed
    to consider whether the Crown has proved that the accused had the
mens rea

relevant to the offence. The Crown cannot prove the requisite
mens rea
by
    disproving a mistake of age defence, but must prove the accused had the
    requisite state of mind:
Carbone
, at paras. 128-29.

[67]

There is no principled basis on which this court
    could take a different approach to the offence of sexual assault, because the
    bedrock principle that to secure a conviction the Crown must affirmatively
    prove the elements of the offence, is equally applicable to that offence. The
    Crowns first submission that it is an error for a trial judge to instruct a
    jury that the Crown must prove the knowledge element in a case where the defence
    of honest but mistaken belief in communicated consent is unavailable to the
    accused is irreconcilable with the affirmation in
Morrison
of the role
    and importance of this bedrock principle. The analysis flowing from
Morrison
prevents the conclusion that the absence of the defence of honest but mistaken
    belief in communicated consent legally removes the burden of the Crown to prove
mens rea
, including the knowledge element in a sexual assault case:
R.
    v. MacIntyre
, 2019 CMAC 3, leave to appeal refused, [2019] S.C.C.A. No.
    346, at paras. 51-54; see also Hamish C. Stewart,
Sexual Offences in
    Canadian Law

(Toronto: Carswell, 2021), at 3:23.

(ii)

The Supreme Courts Formulation of the
Mens
    Rea
Requirement

[68]

In the Supreme Courts jurisprudence, the extensive
    overlap between the
mens rea
requirement and the defence is apparent. Both
    address the accuseds perception of consent, as it is legally defined for the
    purposes of sexual assault, against the backdrop of no such consent actually
    having been given by the complainant. For that reason, [t]he accuseds
    perception of consent is examined as part of the
mens rea
, including
    the defence of honest but mistaken belief in communicated consent:
G.F.
,
    at para. 25;
Barton
, at para. 90. Other indicators of this overlap
    include that the defence is properly understood as a denial of
mens rea
:
Ewanchuk
,
at para. 44, and that the
mens rea
requirement is met if the accused was wilfully blind or reckless regarding the
    absence of consent, just as the defence is unavailable if the accuseds belief
    in consent arose from the accuseds recklessness or wilful blindness:
G.F.
,
    at para. 25;
Code
, s. 273.2(a)(ii).

[69]

However, overlap is one thing. Reading a
    requirement to prove an element of an offence as being legally contingent upon
    a particular defence being raised is quite another. This is especially so since
Morrison
and
Carbone
concluded that the distinction between
    the negativing of a defence and the Crowns burden to prove elements of the offence
    must be respected even where the displacement of a defence (or its
    unavailability) makes conviction a virtual certainty and if, for practical
    purposes in most cases, there is little distance between negativing a defence
    (or its unavailability) and proving the requisite
mens rea
:
Morrison
,
    at para. 88;
Carbone
, at para. 121.

[70]

Although in
Ewanchuk
,
the knowledge element is expressed in
    terms that come close to suggesting it is the mirror image of the defence, the decision
    still makes it clear that the knowledge element is part of the
mens rea
requirement the Crown must prove. And, significantly, the Supreme Courts subsequent
    consistent formulation of the
mens rea
requirement, including in decisions
    after
Morrison
, describes the burden on the Crown to show knowledge,
    wilful blindness or recklessness as to the absence of the complainants consent
    even in cases that go on to mention the defence. This formulation is inconsistent
    with the conclusion that
the burden to establish
    the knowledge element of
mens rea
beyond a reasonable doubt legally
    disappears if the defence of honest but mistaken belief in communicated consent
    is not available to the accused.

[71]

In
Ewanchuk
, the Supreme Court held
    that as sexual assault is an offence of general intent, the Crown is only
    required to prove that the accused intended to touch the complainant in order
    to meet the basic
mens rea

requirement. However, Major J. went
    on to observe that sexual assault is only culpable if the complainant does not
    consent to the touching, making the defence of honest but mistaken belief in
    communicated consent relevant. He continued: As such, the
mens rea

of sexual assault contains two elements: 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:
Ewanchuk
, at para. 42.

[72]

In cases following
Ewanchuk
, the
    Supreme Court has expressed the knowledge element of the
mens rea

requirement
    as existing independently of and, in addition to, whether the defence of honest
    but mistaken belief is at issue, although acknowledging that they cover similar
    territory. In
Barton
, for example, Moldaver J. stated that the
mens
    rea
was intentionally touching knowing of, or being reckless of or
    wilfully blind to, a lack of consent on the part of the person touched: at
    para. 87. He went on to say that [f]or purposes of the
mens rea
, and
    specifically for purposes of the defence of honest but mistaken belief in
    communicated consent  the focus at this stage shifts to the mental state of
    the accused and whether they honestly believed the complainant communicated
    consent:
Barton
,

at para. 90. And in
G.F.
, Karakatsanis
    J. described the
mens rea
in identical terms before going on to say that
    the accuseds perception of consent is examined as part of the
mens rea
,
including
the defence of honest but mistaken
    belief in communicated consent: at para. 25 (emphasis added).

[73]

The suggestion that the knowledge element of the
    Crowns burden is not legally present when the defence of honest but mistaken
    belief in communicated consent is unavailable was rejected on the basis of
    these authorities in
MacIntyre
. I agree with that conclusion. In
MacIntyre
,
    the trial judge concluded there was no air of reality to a defence of honest
    but mistaken belief. He still instructed the panel (the court martial
    equivalent of a jury) that the Crown was required to prove the knowledge
    element, but went on to tell them that they should have no difficulty concluding
    that the knowledge element was satisfied if they believed the complainant had
    not consented. The panel acquitted. The Crown appealed, arguing the court
    martial judge was wrong to leave the knowledge element to the jury at all. Bennett
    J.A., speaking for the Court Martial Appeal Court of Canada, said at para. 33:

First, in my view, it is currently settled law
    by the Supreme Court of Canada that knowledge of the absence of consent is an
    essential element of the offence of sexual assault as it was of the former
    offence of rape. Thus, the Crown's principal submission in this case  that
    absent an air of reality in relation to the accused's honest but mistaken
    belief, the Crown does not have to prove knowledge of absence of consent  must
    be rejected. Because knowledge of absence of consent is an essential element of
    the offence, the Crown must prove it beyond reasonable doubt.

The
    Crown's submission that the
mens rea

of the offence is simply
    the intentional application of force is contrary to binding authority.

(iii)

Hypothetically, Knowledge of Non-Consent Could
    Be an Issue Even if Belief in Consent Is Not

[74]

As noted above, the Crowns first submission flows
    from the assertion of a symmetry between the defence of honest but mistaken
    belief in communicated consent and the knowledge element of the
mens rea
requirement  where the former is absent, the latter must, as a legal
    certainty, always be present.

[75]

The Crown argues that a portion of the analysis
    in
Carbone
, when applied to the offence of sexual assault, shows that
    the knowledge element is the mirror image of the defence, leading to the
    conclusion that the absence of the latter must satisfy the former. However, the
    portion of the analysis in
Carbone
that the Crown refers to expressly
    allows for situations where a non-culpable state of mind could exist, even
    where the reasonable steps defence was unavailable; it therefore does not
    support the Crowns first submission.

[76]

In
Carbone
,
Doherty J.A. identified three possible
    states of mind an accused person could have relating to the age of a minor sexual
    offence complainant, where the accused does not affirmatively believe the
    complainant was over 16. The first category includes those who believed the
    complainant was under 16, or who were wilfully blind to that fact. All of the
    offenders in the first category would be guilty because for each of them, the
    requisite knowledge element would be satisfied. The second category includes
    those who may have appreciated the risk that the complainant was under 16 and
    decided to proceed with the activity. All of the offenders in the second
    category would be guilty since this state of mind describes the classic, culpable
mens rea
of recklessness. The third category includes those who may never
    have adverted to the complainants age and chose to proceed with the activity.
    Offenders in this category who have not adverted to the age of the particular
    complainant because they have made a subjective decision to treat age as
    irrelevant and take the risk could be said to have the subjective state of mind
    of reckless indifference, a form of recklessness, and would therefore be guilty:
Carbone
, at paras. 122-27.

[77]

However, and importantly, Doherty J.A. recognized
    that findings of reckless indifference will tend to apply to most of the people
    in category three, but there could be circumstances, albeit rare, where that would
    not be the case. He continued: While one can imagine circumstances in which
    the failure to advert to the age of the complainant should not be characterized
    as a decision to treat the age of the complainant as irrelevant and take the
    risk, those circumstances will seldom

occur

in the real
    world:
Carbone
, at para. 131.

[78]

In opposition to the Crowns suggestion of
    symmetry, the respondent raised a number of hypothetical cases in which, he
    argued, the issue in a sexual assault case would be about whether the knowledge
    element was present even though honest but mistaken belief in communicated consent
    would not apply. In
MacIntyre
, Bennett J.A. postulated a hypothetical
    to this effect, noting that although an honest but mistaken belief was one way
    to disprove
mens rea
in a sexual assault case, it was not the only way.
    She described a situation in which an accused, through no fault of their own
    (such as involuntary intoxication) had no belief about the complainants
    consent: at para. 65.

[79]

The point of the hypotheticals was to show that
    there could be cases where the knowledge element was not dependant on whether
    the accused had an honest but mistaken belief in communicated consent. If that
    is so, it could not be legally accurate to say that the knowledge element of
    the offence was dependant on the defence being in play. Indeed, accepting the
    Crowns first submission would foreclose consideration of this type of issue
    when it actually arose in a case.

[80]

It is not necessary to consider the validity of
    any of the hypotheticals offered, as the Crown fairly conceded in oral argument
    that it was theoretically possible that a scenario could arise in a sexual
    assault case where the defence of honest but mistaken belief in communicated
    consent was unavailable, but the subjective
mens rea
requirement, including
    the knowledge element, was still a live issue. Crown counsel accepted that in such
    a case, the trial judge would need to instruct the jury accordingly, by leaving
    the knowledge element of the
mens rea
issue with them.

[81]

In my view, the lack of perfect symmetry, even
    at a theoretical level, underscores that as a legal matter, the knowledge
    element is part of the
mens rea
and thus the Crowns burden,
    independently of whether the defence of honest but mistaken belief in
    communicated consent is available to the accused.

(f)

Conclusion on Whether the Trial Judge Erred by
    Leaving the Knowledge Element of
Mens Rea

With the Jury

[82]

Accordingly, the trial judge did not err when he
    told the jury that the sexual assault charge contained four elements that the
    Crown had to prove beyond a reasonable doubt, including the knowledge element;
    that is, the requirement that the respondent knew of, was wilfully blind or was
    reckless as to, the complainants lack of consent. He did not err because,
    contrary to what underlies the Crowns first submission, what the trial judge
    told the jury was a legally correct description of the Crowns burden, even in
    a case where there was no air of reality to a defence of honest but mistaken
    belief in communicated consent. The knowledge element was not a non-issue, reference
    to which could only deflect the jury from considering the real issues in the
    case:
R. v. Murray
(1994)
,
    20 O.R. (3d) 156 (C.A.), at p. 168.

(2)

The Trial Judge Erred in the Way He Instructed
    the Jury to Consider the Knowledge Element

[83]

The fact that it was legally accurate to
    instruct the jury that the Crowns burden included the knowledge element does
    not end the inquiry as to whether the jury charge was adequate.

[84]

The charge also had to ensure the jurors would
    adequately understand the issues involved  and the evidence they should
    consider in resolving the issues:
Cooper
,

at p. 163. They had
    to understand the law to be applied to those issues and the evidence, the
    positions of the parties, and the evidence relevant to the positions of the
    parties:
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.), at p. 386;
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14. The trial judge had to
    isolate the evidence that was relevant to a particular issue:
R. v.
    Barreira
, 2020 ONCA 218, 62 C.R. (7th) 101, at para. 30.

[85]

While the charge to the jury is not to be
    scrutinized on a standard of perfection, the parties are entitled to a properly
    instructed jury, assessed in the context of the charge and trial as a whole:
Daley
,
    at para. 31;
Jacquard
, at paras. 2, 20;
R. v. Alvarez
,
    2021 ONCA 851, at para. 80; and
R. v. Jaw
, 2009 SCC 42, [2009] 3
    S.C.R. 26, at para. 32.

[86]

In my view, having decided to instruct the jury
    as to the Crowns burden on the knowledge element, 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 respondents 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.

[87]

In my view, the jury instruction did not do
    this.

(a)

The Jury Charge Must Protect Against Verdicts
    Based on Legal Error

[88]

In this case, it was incumbent on the trial
    judge to instruct the jury on what evidence they could consider to conclude whether
    the knowledge element was satisfied, given that evidence of the respondents belief
    in consent was proffered during the trial.

[89]

One way to illuminate that issue is to consider
    what a trial judge must say in instructing a jury when a defence of honest but
    mistaken belief in communicated consent
is
being
    left with the jury. In that situation, the trial judge must instruct the jury
    so that it properly considers evidence of belief in consent. The trial judge
    must, among other things, instruct the jury in a manner that would inoculate
    the jury against mistakes of law masquerading as mistakes of fact, such as a
    mistaken belief in implied consent arising from a lack of objection or ambiguous
    conduct, or a belief formed from speculation about what was going on in the
    complainants mind, as opposed to expressly communicative behaviour. The trial
    judge must instruct the jury on the reasonable steps precondition, and the type
    of evidence that can and cannot constitute such steps:
Barton
, at
    paras. 116-19.

[90]

Jury instructions in a case where there is no air of reality to
    the defence of honest but mistaken belief in communicated consent must be
    equally clear, but in such a case, the clarity required is that evidence of the
    accuseds mistaken belief in consent is not to be considered at all when the
    jury determines whether the accused had the necessary
mens
    rea
. The provisions of the
Code
that limit the defence of honest but mistaken belief in communicated consent do
    not cease to apply to an assertion of a mistaken belief in consent that does
    not meet the requirements of the defence. The
Code
is clear. Any belief that does not meet the requirements of s. 273.2 of the
Code
is not a defence

it is
    not exculpatory.

[91]

As this court held in
Carbone

in the case of invitation to sexual touching, [i]f the
    accused fails to take reasonable steps to determine the complainants age, he
    cannot advance the claim that he believed the complainant was the required
    age:
Carbone
, at para. 130; see also,
Morrison
, at paras. 83, 121 and 124. Any evidence of
    belief must be removed from the evidentiary mix in considering whether the
    Crown has met its burden:
Carbone
, at para.
    129. Similarly, evidence of an accuseds mistaken belief in the complainants
    consent to sexual touching must also be removed from the evidentiary mix, if it
    is not within the range of beliefs in consent that an accused may lawfully
    hold:
G.F.
, at para. 1.

[92]

If it were otherwise, an accused could sidestep the stringent
    requirements for a defence of honest but mistaken belief in communicated
    consent by relying on this same belief, without reference to the restrictions
    imposed on it, at the
mens rea

stage.

[93]

Care must thus be taken, in a case where the
    defence of honest but mistaken belief in communicated consent is unavailable,
    not to, for example, point the jury to evidence of belief in consent in their
    consideration of
mens rea
and thus allow the defence to re-enter
    through the back door:
MacIntyre
, at para. 67.

[94]

Once the trial judge has ensured that evidence
    of belief in consent is removed from the evidentiary mix the jury will consider
    on the knowledge element, it may be necessary to provide the jury with
    additional guidance on how to approach the knowledge element.

[95]

Notwithstanding the legal difference between the
    Crowns burden to prove elements of the offence and the non-availability of the
    defence of honest but mistaken belief in communicated consent, in some cases
    the circumstances that lead to the conclusion that there is no air of reality
    to the defence are, practically speaking, the same as those that prove the
    knowledge element. In other words, in those cases, there is little practical
    difference between what displaces the defence and what satisfies the knowledge
    element of the
mens rea
requirement:
Carbone
, at para. 121.
    The jury must be instructed in such a way that it is not misled into seeing
    more of a distinction than properly exists.

[96]

One way of doing so is by means of a little
    difficulty instruction, as discussed in the Alberta Court of Appeal decision
    in
Barton
(
R. v. Barton
, 2017 ABCA 216, 354 C.C.C. (3d) 245,
    revd on other grounds, 2019 SCC 33, [2019] 2 S.C.R. 579). Although this aspect
    of the decision was not addressed on appeal to the Supreme Court, it is
    nevertheless instructive. At footnote 105, the Court of Appeal said:

Where mistaken belief is not a live issue,
    this raises the question whether a trial judge should instruct the jury
    (providing it is satisfied that all the required
actus reus
elements
    were met and the judge has properly outlined these) that: If you are satisfied
    that the Crown has proven beyond a reasonable doubt that the complainant did
    not consent to that sexual activity, you should have little difficulty in
    concluding that the accused knew or was wilfully blind to the fact that the
    complainant was not consenting to the sexual activity in question or was
    reckless and chose to take the risk. Should more be required, then the jury
    instructions should identify what it is that the Crown must then prove to bring
    home to the accused culpability based on actual knowledge or its equivalent,
    wilful blindness or recklessness.

[97]

In
MacIntyre
, the court picked up this
    suggestion. Bennett J.A. said, at para. 64:

In consent-or-no-consent cases (including this
    case, as discussed below), if the trier of fact accepts the complainant's
    evidence that there is no consent, the knowledge element is easily proven. This
    supports the suggestion in footnote 105 of
Barton ABCA

that
in the absence of a mistake of fact defence, juries may be told
    that if they accept the evidence of a complainant on the issue of consent, they
    will have little difficulty finding the element of knowledge proved
.
    [Emphasis added.]

[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 complainants 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.

(b)

The Instructions in This Case

[99]

In this case, the jury was instructed that they
    should consider all the evidence  the entire interaction  on the question of
    whether the knowledge element was proven, including evidence that the trial
    judge had previously summarized. They were told it was all relevant to the
    issue of whether the knowledge element was satisfied. This included references
    to the respondents evidence that he interpreted the complainant looking and
    smiling at him, and standing and turning around, as her invitation to him to
    engage in vaginal intercourse with her, causing him to have no doubt that this
    was what she wanted, and to infer that she was consenting.

[100]

This was evidence of the respondents belief in consent. It was also
    evidence of a mistaken belief, if the jury was addressing the elements in the
    order the trial judge had instructed. To be considering the knowledge element,
    they would have already concluded beyond a reasonable doubt that the third
    element was satisfied; that is, that the complainant had not actually
    consented.

[101]

The jury was not told that the evidence of belief was not
    exculpatory or a defence, or that it must be removed from the evidentiary mix.
    Rather, the jury was pointed to it and told it could be considered.

[102]

The effect of the trial judges charge was to leave evidence of mistaken
    belief in consent with the jury and invite them to consider it on the issue of the
    respondents state of mind in relation to the sexual activity  [whether he]
    was aware that [the complainant] did not consent to the sexual activity in
    question when he touched her.

[103]

The trial judge did not instruct the jury that there were any limits
    on when a belief in consent can be lawfully held and when it can have
    exculpatory effect. Therefore, even viewing the charge as a whole, there is no
    basis to conclude the jury would have understood those limits from the
    instructions they were given.
While the trial judge did
    instruct the jury on consent at the
actus reus
stage, by cautioning
    them about stereotypes and myths regarding sexual assault, this was not
    sufficient to make clear that beliefs of the respondent about consent, at the
mens
    rea
stage, could not properly be considered exculpatory. As noted above,
    the
Code
tightly restricts the range of mistaken beliefs an accused
    may lawfully hold about the complainants consent and [n]ot all beliefs upon
    which an accused might rely will exculpate him:
G.F.
, at para. 1;
Ewanchuk
,
    at para. 50;
Code
, s. 273.2(a)-(c). The jury was not told in the
    initial charge that there were any restrictions on the exculpatory nature of
    mistaken beliefs, depending on what the belief was and how it arose. In effect,
    they were invited to consider evidence of a mistaken belief in consent which
    the parties agreed would not have exculpatory effect because there was no air
    of reality to the defence of honest but mistaken belief in communicated consent
    that could be based on that evidence.

[104]

The jurys question, about the effect of intoxication, underscores
    the concern. The fact that the question was asked shows that the limits on when
    a belief in consent may be exculpatory had not been communicated. Although the
    intoxication question was answered, the more general concern of what the jury
    might have considered it could do with evidence of the respondents belief in
    consent remained unresolved.

[105]

Given that there was no air of reality to the defence of honest but
    mistaken belief in communicated consent, the trial judge had to give an
    instruction that did not risk the jury considering evidence of belief in
    consent. As the court pointed out in
MacIntyre
, it is an error to
    repackage the defence of honest but mistaken belief in communicated consent as
    an element of the offence by, for example, pointing the jury to evidence of the
    accuseds belief in consent on the question of whether the
mens rea
has been established. To do so introduces the defence improperly through the
    back door:
MacIntyre
, at para. 67. This error did not occur in
MacIntyre
,
    because the trial judge did not point the panel to evidence of belief in
    consent, but instead told them they should have no trouble finding the
    knowledge requirement satisfied (if they found there was actually no consent,
    the main issue in the case). But the error identified in
MacIntyre
is
    exactly what occurred here.

[106]

Moreover, the trial judge did not provide the jury with guidance as
    to how to proceed with the evidence they could properly consider. He did not,
    for example, give an instruction that, based on the evidence they could
    consider, they should have little difficulty in finding the knowledge element
    satisfied. Nor did he identify what more the Crown had to prove to satisfy the
    knowledge element.

[107]

The instructions directed the jury to evidence of belief in consent,
    improperly introducing a defence that was not to be left with the jury. The
    jury instruction did not inoculate the jury against giving effect to legally
    ineffective beliefs. Nor did it guide the jury on what it could do with the
    evidence that it could properly consider. In my view, the charge was legally
    flawed.

(3)

The Legal Errors in the Jury Charge Require a
    New Trial

[108]

Where an error in a jury charge might reasonably, in the concrete
    reality of the case, have had a material bearing on an acquittal, such that the
    verdict would not necessarily have been the same as if the jury was properly
    instructed, a new trial should be directed:
R. v. Graveline
, 2006 SCC
    16, [2006] 1 S.C.R. 609, at paras. 14-16.

[109]

The error in the jury charge, in these circumstances, meets that
    test. The trial judge failed to limit the jurys consideration of mistaken
    beliefs that would not actually negate the respondents
mens rea
or
    otherwise guide them on the evidence they could properly consider on the
    knowledge element. This error in the jury charge may reasonably have had a
    material bearing on the jurys ultimate decision to acquit. The jurys question
    suggests that they had reached the knowledge element in their deliberations,
    and the errors were central to a proper consideration of that issue.

CONCLUSION

[110]

I would allow the appeal, set aside the acquittal, and direct a new
    trial.

Released: January
    13, 2022 C.W.H.

B.
    Zarnett J.A.

I
    agree. C.W. Hourigan J.A.

I
    agree. David M. Paciocco J.A.


