In Rex and A.B., the Ontario Court of Appeal considered the Appellants's conviction, a jury, for sexual assault against former domestic partner. Underlying the conviction was the allegation that an incident occurred a number of days after the complainant had surgery to remove her appendix. The jury found the appellant guilty of the above count, and found him not guilty of all other sexual assault allegations, including sexual assault (four counts) and choking to overcome resistance (one count).
The OCA held that there was an error in the Trial Justice's instructions to the jury that stemmed from the mens rea requirement for sexual assault. The representative passage from the judgement stated:
[32] The appellant argues that the trial judge erred in his instruction to the jury on wilful blindness because his instruction suggested that the jury should assess the appellant’s conduct from the perspective of what a reasonable person in the appellant’s position ought to have understood rather than from the perspective of what the appellant actually understood. I agree with this submission and would add that the instruction on recklessness suffers from the same defect. Moreover, this was not an innocuous error. The instruction on the knowledge element of sexual assault could have led the jury to convict the appellant if they were satisfied that the appellant should have known that the complainant was not consenting as seen from the perspective of a reasonable person rather than as seen from his subjective perspective.
[33] The mens rea element of sexual assault requires the Crown to prove beyond a reasonable doubt that an accused knew that the complainant did not consent to the sexual activity. This knowledge element can be proven through actual knowledge, recklessness or wilful blindness: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 23.
[34] Recklessness and wilful blindness are two distinct concepts: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 20, 22; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3, at para. 100. The doctrine of wilful blindness “imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”: Briscoe, at para. 21 (emphasis in original); see also Morrison, at para. 98. Recklessness is “the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance”: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, para. 16.
[35] While recklessness and wilful blindness are distinct concepts, neither looks at the accused’s knowledge from an objective perspective; that is, from the negligence standard of what a reasonable person ought to have known. Rather, recklessness and wilful blindness both require an inquiry into what the accused subjectively knew or understood at the time of the sexual activity: Briscoe, at para. 20; Sansregret, at para. 16.
In assessing the severity of the error committed by the trial court, the OCA stated that it was minor and the curative proviso of the Criminal Code did not apply in the circumstances; and a new trial was required as a result.
This decision is another example of the attention to detail that is required in jury instructions.
If you have been charged with a sexual assault, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.
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