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An error of putting a defence of a “mistaken belief” to consent in a sexual activity to a jury could led to adverse results for an accused that ought to be overturned on an appeal when there was no “air of reality” to the defence. 

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Sexual assault charges
Defence in mistaken belief in consent for sexual assault

In Reginav. Donnelly, 2018 ONCA 575 (CanLII), the Ontario Court of Appeal set aside the accused’s conviction for sexual assault and ordered a new trial. In this case, the complainant was a woman who had been forced into the sex trade.  This complainant had testified that she went along with oral and protected vaginal sex, but that during intercourse, the accused performed certain acts, and removed his condom and continued vaginal intercourse without her consent.  According to the complainant, during the sexual intercourse the appellant pulled a strap-on out of his drawer and asked if they could use it. The complainant said that she told the appellant no but he proceeded to penetrate her with it. Further she testified that the appellant removed his condom and continued vaginal intercourse, despite the fact that she had told him to keep the condom on.

The accused/appellant flatly denied these allegations.   In his testimony, the appellant admitted to the oral and protected vaginal sex, but denied that they had sex without a condom or that he used a strap-on. He also denied ejaculating into the complainant’s vagina but testified that he ejaculated onto her face with her permission. Typically, such evidence would warrant the application of the use of the legal test in Regina v. W(d), [1991] 1 SCR 742, 1991 CanLII 93 (SCC) where ideally, the appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

On appeal, the accused argued that the trial judge erred by placing the defence of honest but mistaken belief to the jury, since it was entirely inconsistent with his testimony denying that the acts in question took place. The court of appeal agreed with that argument because there was “no air of reality” to that defence.  An “air of reality” was defined by the Supreme Court of Canada, in the following way in Reginav. Cinous, [2002] 2 SCR 3, 2002 SCC 29(CanLII):

“A defence should be put to a jury if, and only if, there is an evidential foundation for it.  A trial judge must thus put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused, but he has a positive duty to keep from the jury defences lacking an evidential foundation — or air of reality.  This is so even if the defence is the only defence open to the accused.  The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.  In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true.  The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence.  That question is reserved for the jury.  The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.  Nor is the air of reality test intended to assess whether the defence is likely to succeed at the end of the day.  The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.”

Furthermore, the manner in which it was put to the jury obscured the accused’s actual defence and position on what happened. The trial judge misstated the accused’s position by telling the jury that the accused honestly believed that the complainant had consented to the acts in question when he clearly testified that the acts did not take place. The charge would only serve to confuse the jury and a new trial was needed.

Being charged with a serious, violent crime like sexual assault, may call for the assistance of an Criminal Defence lawyer in Alberta or other provinces in Canada. A lawyer will review all the evidence about the alleged sexual assault; and advise his or her client on how best to fight any charges. If the accused was not taken into custody according to the letter of the law, a lawyer might be able to have the charges dropped. An accused client has the right to mount an aggressive defense with the knowledge that it is incumbent upon the Crown to prove guilt beyond a reasonable doubt.

If you have been charged with a sexual assault offence under the Criminal Code of Canada, contact Mr. J.S. Patel, Calgary Criminal Lawyer for an initial free consultation at 403-585-1960. 

   

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An evidentiary assessment, from the case-law, of the motives of complainants to lie in historical sexual assault cases, and a disbelief of accused’s evidence

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Motive to Fabricate

While the assessment of credibility in a context of a sexual assault is driven by general principles, there are deeper legal principles, surrounding the rules of evidence that govern its application.   In Regina v. A.S., 2017 ONCA 994, the Ontario Court of Appeal ordered a new trial for historical sexual offences allegedly committed by a pediatrician against two (2) of his former patients. The allegations spanned a period between 1964 and 2013. He was acquitted of charges against four (4) other complainants at trial. There is a publication ban on the nature of the facts.  The factual findings are related in the decision of the Court of Appeal.  This case is helpful in that is reinforces the Appellate Court’s views on the assessment of credibility when consider a motive to lie and the Crown’s failure to corroborate evidence in the context of historical sexual assault cases, where witness memories are typically spent.

Court of Appeal’s Decision in A.S.

The Court of Appeal found that the Trial Court’s misapprehensions of evidence and unsupported conclusions, taken together, meant the convictions could not stand. In summary, trial court had held that an absence of a complainant’s motive to lie enhanced her credibility. In citing Regina v. L. (L.)(2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413 (CanLII), at para. 44, the Court of Appeal held that “There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility” (at para. 25).  Of note, is the Court’s comments that certainly the absence of any apparent motive to lie is an unreliable marker of credibility.  Consequently, it is generally an unhelpful factor in assessing credibility  The trial court also erred by drawing an inference of guilt from her disbelief of the accused’s evidence and by attributing a motive to him, to visit the complainant, that was based on a misapprehension of the evidence. In addition, the trial court also rejected defence submissions about the importance of the absence of corroboration.  It stated: “None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration does not arise.” The Court of Appeal found that while the trial judge is correct that corroboration is not necessary in such cases, the trial court was not correct that the alleged crimes were committed where the only persons present were doctor and patient. On the complainant’s own version of events, a nurse walked in during the most serious of the assaults she described. There were other areas of potential corroboration as well, such as records confirming contact between the appellant and complainant. that never materialized. The trial court inaccurately dispensed with the potential for corroboration, presenting the risk that she may not have given sufficient consideration to the undeniable fact that the complainant’s allegations stood alone.
 

The above noted information is not intended as legal advice.  If you have been charged with a historical sexual assault offence, call Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.