Facts:
Complainant A was a high school student aged 18 while the accused was 29 years old. She did not disclose to the police at the time of the incident, and reported under condition of anonymity ten years after the alleged incident occurred. Her evidence is that her and a mutual friend met the accused at a bar. They returned to the accused’s residence and he provided them with alcohol. The complainant took a tour of the accused’s home. When the pair entered the bedroom, the accused removed his pants and asked the complainant to perform oral sex, which she did for a short time before stopping. The complainant told the reporter “It was like a controlling thing… like I just remember I wanted to go, but that wasn’t happening.” She also said that she then left his house and went to a nearby friend’s place.
Complainant B was a university student who was employed by the accused while he was a member of Parliament in 2012. He was 34 at the time and she was 18. They met on a flight and continued to converse briefly through Facebook. She applied for a position and was hired to work in his Barrie constituency office. After an event the complainant became intoxicated at a local bar and returned to the accused’s home in Barrie. Both parties ended up in the accused’s bedroom and the complainant told the reporter:
“The next thing I know he’s kissing me. Sitting beside me, kissing me and then I was, I kind of just froze up. He continued to kiss me and he laid me down on the bed and got on top of me. I remember consciously trying not to move my mouth and I was just not moving, so I was laying there immobile and he kept kissing me,”
“I felt it was sexual. I could feel his erection on my legs when he was on top of me so I felt that it would have gone to sexual intercourse if I had not done anything,” she said. “I would characterize that as a sexual assault.”
“That scenario, like of a very inebriated young employee in the bedroom of her boss, alone with him, who hasn’t had a drop of alcohol all night, just that’s an intimidating situation and I was not sure what to do about it,” the former staffer said.
She told him to stop, saying she had a boyfriend and told Brown to take her home, which he did, driving her back to her parents’ house.
The complainant continued to work for the accused the following summer, and further alleges that during that period the accused made other inappropriate comments about having sexual relations with others.
Sexual assault law in Canada
Sexual assault
section 271
Criminal Code (R.S.C., 1985, c. C-46)
Everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
Elements of the crime:
Actus Reus
The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: touching; the sexual nature of the contact; and the absence of consent.
The first two elements are objective, and it is sufficient for the Crown to prove that the accused’s actions were voluntary. It does not have to prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour. The absence of consent is subjective and is determined by the complainant’s subjective internal state of mind towards the touching when it occurred.
“Consent” for the purposes of the sexual assault provisions means the voluntary agreement of the complainant to engage in the sexual activity in question.
However, no consent is obtained where
- the agreement is expressed by the words or conduct of a person other than the complainant;
- the complainant is incapable of consenting to the activity;
- the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
- the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. These provisions are not to be construed as limiting the circumstances in which no consent is obtained.
Furthermore, no consent is obtained where the complainant submits or does not resist by reason of:
- the application of force to the complainant or to a person other than the complainant;
- threats or fear of the application of force to the complainant or to a person other than the complainant;
- fraud;
- the exercise of authority.
The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. An unconscious person cannot satisfy this requirement, even if consent is expressed in advance.
A victim of a sexual assault is not required to offer some minimal word or gesture of objection. A lack of resistance need not be equated with consent.
There is no defence of implied consent to sexual assault in Canadian law.
Mens Rea
The mens rea of sexual assault consists of two elements: the intention to touch the complainant; and knowledge, recklessness or wilful blindness to a lack of consent on the part of the complainant.
As with the actus reus of the offence, the absence of consent is an integral part of the mens rea, but now is considered from the perspective of the accused. In order to make out the defence of honest but mistaken belief in consent, thus denying the mens rea required to commit sexual assault, the evidence must show that the accused believed that the complainant communicated consent to engage in the sexual activity in question. The exculpatory effect of consent in relation to the mens rea of the accused is limited by the common law and by statute.
It is not a defence to a sexual assault related charge that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where the accused’s belief arose from the accused’s (a) self-induced intoxication; or (b) recklessness or wilful blindness, or where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Defence
Case law: R. v. Ewanchuk
Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” As noted by Major J., speaking for the majority in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para 27, 131 C.C.C. (3d) 481, consent is determined solely by reference to the complainant’s actual state of mind.
The defence of mistaken belief in consent is a different matter. It arises where the complainant has not consented to the sexual activity but the accused was operating under a mistaken belief that the “complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused”: Ewanchuk at para. 49. If the accused’s belief is found to be mistaken:
… then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence. [Ewanchuk at para. 64]
An assessment of the mistaken belief in consent focusses on the accused’s state of mind. Nonetheless, s. 265(4) entitles the trier of fact “to consider the presence or absence of reasonable grounds for that belief” when assessing the honesty of the accused’s belief; and the defence is not made out simply by demonstrating a subjective belief on the part of the accused. As Major J. observed in Ewanchuk at para. 51: “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence.”
Analysis:
Actus Reus:
There was touching, there was a sexual nature to the contact, and the complainant’s have reported an absence of consent.
Both complainants were likely intoxicated at the time the alleged assaults took place. In the context of sexual assault, the capacity to consent is straightforward and is a factual issue to be decided by the trier of fact. A person has the requisite capacity where she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task. Drunken consent is still valid consent, but in cases of extreme intoxication it has been found that consent was vitiated. Based on the disclosures made by both complainants it would appear that they were intoxicated at the time, but still able to understand and agree/not agree to the activity.
It would be more difficult for the Crown to make out Complainant A’s lack of consent with respect to performing fellatio on the accused as opposed to Complainant B’s claim that the accused climbed on top of her. Caveat: there is an enormous lack of information as to what transpired in the accused bedroom a decade ago.
For the purpose of this exercise, let’s assume that the allegations that have been raised are true, and that the actus reus is made out.
Mens Rea:
The accused had the intention to touch the complainant. Assuming that the actus reus is made out the question then remains: did the accused have the knowledge, recklessness or wilful blindness to a lack of consent on the part of the complainant?
As Major J. put it in Ewanchuk, at 296:
“In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her, but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions.”
Thus, in the context of the mens rea of the offence, consent, “means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. The bare assertion by an accused of an honest but mistaken belief in consent is not a sufficient basis for considering the defence. As Major J. put it in Esau at 296, “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence.” While this evidence often comes from the testimony of an accused, it can also come from the evidence of the complainant or other witnesses. In determining this threshold question, my task is not to substantively evaluate the merits of the defence. Rather, I am to consider only the “facial plausibility” of the defence. Thus, in Ewanchuk, Major J. stated at 502: All that is required is for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea.
In this fact scenario does the evidence raise an air of reality that would create a reasonable doubt that the accused had the mistaken belief that the two complainants had affirmatively communicated by words or conduct their agreement to engage in sexual activity? What would a jury decide in the case of the accused?
There is no evidence from the complainants or accused at this point that would indicate that anything at all was communicated. From the evidence it appears as though the accused interpreted the fact that the complainants had returned to his residence and ended up in his bedroom as their consent to participate in sexual activity with him. Without any further evidence it would be risky to put that before a jury and hope for an acquittal. This is the area of criminal law that the lawyers own – the negotiation of a plea deal that will satisfy both the accused and the public with respect to the outcome.
That being said we have not heard from the accused. What if his evidence that, in the case of the first complainant, that she had said something like “Can you show me your bedroom? I want to show you what I can do when the lights go out.” That would almost certainly give rise to a defence of honest but mistaken belief. This scenario seems less likely in the case of complainant #2 whose statement read “The next thing I know he’s kissing me.” That being said there very easily could be other evidence that could be adduced that would lead to a successful defence of honest but mistaken belief. Remember: the accused must only create a reasonable doubt in the minds of the jurors to avoid a conviction. It is a very high bar.
This was certainly a tragedy – for the young women involved who had a negative sexual experience at a young age, for the accused whose reputation has been eviscerated after 22 years of incredibly hard work, and for the public who have experienced a range of emotions from moral indignation to outrage at the whole situation. This is particularly hard given the fact that everyone will be left in the dark without a trial to provide some clarity to the events in question. The passage of time greatly exacerbates the situation as well, serving to cloud memories and taint all of the evidence.
Ultimately, with no charges, and no civil suit, the matter will be tried in the court of public opinion in Barrie, Ontario. It will be those constituents there that will deliver the verdict to the accused without any evidence or law whatsoever. Perhaps it is fitting to end with the words of Gloria Steinham who said “Law and justice are not always the same.” In this case, which is not really a case at all, nothing could be closer to the truth.