R. v. O., M.

R. v. O., M. Collection Decisions of the Court of Appeal Date 1999-09-23 Docket numbers C31662 Judges Brooke, John Watson; Finlayson, George Duncan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990923 DOCKET: C31662 COURT OF APPEAL FOR ONTARIO BROOKE, FINLAYSON and ROSENBERG JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) Robert Kelly, for the appellant ) (Appellant) ) ) –and– ) ) M. O. ) Robert Sheppard, for the ) respondent (Respondent) ) ) ) Heard: August 19, 1999 ) FINLAYSON J.A.: [1] On February 14, 1999, the respondent was acquitted of sexual assault after a trial before Mr. Justice Haines of the Superior Court of Justice in London, Ontario. The Crown has appealed the acquittal to this court. [2] The accounts of the complainant and the respondent varied significantly. At the time of the alleged assault, the complainant was 15 years old, was a ward of the Children’s Aid Society, and lived at a Group Home. The respondent was 23 years old and lived in a bachelor apartment. The complainant and the respondent met at a bus stop. They chatted briefly and then agreed to walk to the respondent’s apartment and drink beer together. On the way from the beer store to the respondent’s apartment, the respondent made flirtatious and sexually suggestive remarks. When the two returned to the apartment, they sat and drank beer for some time. The complainant testified that she became increasingly withdrawn and uncomfortable as the evening progressed and that this frustrated the respondent. The respondent denied this. [3] At one point, the complainant got up to go to the bathroom, and when she returned she found the respondent lying on the bed. At the respondent’s urging, the complainant joined him on the bed, although she says she felt awkward. The respondent testified that the complainant had gone to get massage oil and then allowed him to massage her, which the complainant denies. The respondent then began to play with the complainant’s hair, and used his hand to lay her down on the bed. They then began to have intercourse and, at some time during that intercourse, the respondent asked her whether he should use a condom, and, according to the respondent, the complainant said that that would be a good idea. He then went into the bathroom to put on a condom and returned. However, on his account, he had difficulty sustaining an erection and no further intercourse took place. The respondent then manually stimulated himself and the complainant and went to sleep. The complainant testified that there was an initial brief period of intercourse, followed by her becoming quiet and withdrawn, followed by a second encounter. Accordingly, the complainant testified that there were two acts of sexual intercourse, but the respondent testified that there was only one. On cross-examination, the respondent acknowledged that at some time the complainant had said “No”, but he took that as meaning “No” without a condom. The respondent also testified that he told the complainant, at some point, that he knew when a woman said no, she meant no. The complainant testified that she said “No” on the earlier occasion as the respondent was trying to take her pants off, but the respondent testified that she took off her own pants. The trial judge found that “it is common ground that she did say “No” at one stage, although, on the evidence, it is not clear to me just when that was said and under what circumstances”. [4] The next morning, after leaving the respondent’s apartment, the complainant went to the home of two of her friends, where she broke down and recounted what had happened the previous night. [5] At trial, Haines J. found that the complainant “was not an active participant in the sexual activity” and that “in her mind, she had decided she didn’t want to have sexual relations with the accused that night.” Nonetheless, Haines J. acquitted the accused because the complainant had not “expressed by words or conduct, a lack of agreement to engage in such activity”, and therefore the “the accused had an honest, if mistaken, belief that the complainant was consenting.” [6] The judgement of the trial judge acquitting the respondent of sexual assault on the basis that the respondent had an honest if mistaken belief that the complainant was consenting to the sexual acts was delivered prior to the release of the judgment of the Supreme Court of Canada in R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481. [7] In Ewanchuk, the Supreme Court held that there are two components to sexual assault: actus reus and mens rea. The actus reus is established by showing that the accused touched the complainant in a sexual way and that there was an absence of consent. Consent in this context is “determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.” (para. 26) The mens rea for the offence is established by showing that the accused intended to touch the complainant with knowledge of, or reckless or wilful blindness to, a lack of consent on the part of the person touched. The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. For the purposes of the honest but mistaken belief in consent, “consent” means that the complainant had affirmatively communicated (through words or conduct) her agreement to engage in sexual activity. (para. 46) [8] The element of actus reus was established at trial, as is shown by the clear findings of the trial judge that he believed that the complainant, in her own mind, was not an active participant and did not want to engage in sexual activity with the respondent. As such, the issue on this appeal is the mens rea element of the offence and, specifically, whether the trial judge erred in finding that the respondent had an honest but mistaken belief in consent. [9] Dealing with the issue of honest but mistaken belief in consent, Major J. for the Supreme Court stated at paragraph 64 of Ewanchuk: In cases such as this, the accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, then the 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. (Italics in original.) [10] The requirement that the evidence lend an “air of reality” to the defence of honest mistake is meant to weed out spurious defences and to ensure that all defendants in sexual assault cases not have access to this defence merely by asserting it. As articulated by the Supreme Court, the test involves an analysis of whether there is something in the evidence of the circumstances surrounding the alleged assault which lends an air of reality to the defence. R. v. Bulmer (1987) 33 C.C.C. (3d) 385 (S.C.C.), R. v. Livermore (1995) 102 C.C.C. (3d) 212 (S.C.C.). Evidence lending an air of reality can come from the accused or from other sources. R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.). In this case, there was an air of reality to the defence. There was evidence before the trier of fact that supported the position of the appellant that he honestly believed that the complainant had consented. This evidence included the testimony of the respondent that: the complainant requested and accepted a back massage from the respondent after having retrieved lotion from the bathroom and having removed her shirt; the complainant was responsive to kissing and hugging; the complainant took off her own pants and underwear; and the complainant’s saying “No” referred to a question about the use of a condom rather than to the question of willingness to engage in sexual activity. [11] The next step, therefore, is to determine whether the respondent honestly believed that the complainant communicated consent. The trial judge in this case made the following findings on this issue: Having considered all of the circumstances, I have concluded that there is evidence to support the conclusion that the accused had an honest, if mistaken, belief that the complainant was consenting. I am, therefore, left with a reasonable doubt, the benefit of which I must, according to law, give to the accused. [12] While understandably the language employed in the reasons of the trial judge is not in conformity with the later reasons delivered by Major J. for the Court in Ewanchuk, the trial judge made significant findings that relate to the issue of consent: I have no difficulty finding that the complainant was not an active participant in the sexual activity. Indeed, I accept her evidence that in her mind, she had decided she didn’t want to have sexual relations with the accused that night. Clearly, if it was apparent to the accused by either the words or actions of the complainant that she was not consenting to sexual contact, he is guilty of sexual assault. … … However, on all the evidence, I am unable to conclude that she expressed by words or conduct, a lack of agreement to engage in such activity. [13] Accordingly, he although the trial judge found that while she the complainant did not want to have sexual relations with the respondent, he was not prepareddid not go so far as to say that she was not prepared to consent. He The trial judge further finds that she the complainant did not by words or conduct communicate any lack of consent to the respondent. The Crown on appeal, however, takes the position that these two findings of fact demonstrate that the trial judge concluded that the sexual acts were performed by the respondent without the consent of the complainant and but for his later and wrongful conclusion that the respondent had an honest if mistaken belief that the complainant had consented to them, the trial judge would have convicted the respondent. [14] The Crown’s argument is based on the following statement of the law by Major J. at para. 46 in Ewanchuk: “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”. [Emphasis in the original.] In other words, the absence of conduct or language on the part of the complainant negativing consent is no longer sufficient to make out a defence for honest but mistaken belief. Rather, the respondent must honestly believe that by her words or conduct the complainant was communicating her consent to engage in sexual activity. [15] The consenting However, it is one thing to show that on the basis of language employed in a later decision the trial judge did not articulate the correct criterion, it is another thing to assume that he would not have applied the more recent interpretation of the law had he known of it. The trial judge’s findings in this case are compatible with the standard articulated in Ewanchuk. Although he did not make a finding as to whether the complainant affirmatively communicated her consent as is now required, there is ample evidence in this record on which he could have based such a finding had he known it was required of him. [16] This is a Crown appeal from the decision of a trial judge who heard this case on the merits and who acquitted the respondent because in the last analysis he was not persuaded that the Crown had proved his guilt beyond a reasonable doubt. The Crown on appeal had no criticism of the judgment below other than its failure to conform to the subsequent decision in Ewanchuk. On a Crown appeal against a verdict of acquittal, I do not think that this court should be overly critical of the reasons given by the trial judge in accordance with the law as he then understood it simply because the Supreme Court has reformulated the legal test that is to be applied. Form must not be allowed to triumph over substance in a case such as this where the decision of the trial judge could easily have been written in a way that conforms with the precise wording of the Supreme Court’s latest ruling. [17] I am not prepared to interfere with the trial judge’s finding as to an honest if mistaken belief. He found that the respondent had an honest belief that the complainant had consented to sexual activity and therefore he must have accepted the testimony of the respondent relating to the conduct of the complainant which the respondent perceived to be the manifestation of her consent. In these circumstances, while the trial judge may not have said that the respondent honestly believed that the complainant “had communicated consent”, his finding that he honestly believed that the complainant “was consenting” coupled with his finding that she had not “expressed by words or conduct a lack of agreement to engage in such activity” amounts to substantial compliance with the later ruling of the Supreme Court of Canada such that it does not warrant a new trial. [18] On a Crown appeal of an acquittal, this court can only set aside the acquittal and enter a conviction if it is certain that the requisite factual findings have been made: R. v. Cassidy (1989), 71 C.R.(3d) 350 (S.C.C.) In this case, the findings of fact to support a conviction are simply not in place. At the highest, the Crown can only ask for a new trial in the expectation that a second judge would, in the light of Ewanchuk, enter a conviction on the same evidence. In my view, this court should not subject the respondent to another trial because the trial judge in this case did not use precisely the same formula as did the Supreme Court in a later case. This would be at least analogous to “double jeopardy”. [19] For the reasons given, I would dismiss the appeal. Released: SEP 23 1999 Signed: “G.D. Finlayson J.A.” JWB “I agree John W. Brooke J.A.” ROSENBERG J.A. (dissenting): [20] This Crown appeal from an acquittal for sexual assault requires this court to consider the defence of mistaken belief in consent. The complainant was 15 years of age when she met the respondent at a bus stop in the City of London. They returned to his apartment and after a period of drinking, various sexual acts took place. There were significant differences between the accounts of the complainant and respondent. The complainant testified that she did not consent to the sexual activity. The principal defence raised was consent. However, in the alternative the respondent’s counsel argued that the respondent could be acquitted on the basis of mistaken belief in consent. [21] The trial judge accepted the complainant’s evidence that she did not want to have sexual relations with the respondent. He acquitted the respondent on the basis of mistaken belief in consent. The Crown submits that the trial judge erred in two respects. He misapprehended the elements of the defence and erred in holding that there was an air of reality to the defence. Accordingly, the Crown submits that the acquittal should be set aside and a conviction entered. I agree with the appellant that the trial judge did misapprehend the elements of the mistake defence. In my view, however, there was an air of reality to the mistake defence. Accordingly, I would allow the appeal and order a new trial. THE FACTS [22] The offence was alleged to have occurred on Friday, April 3, 1998. In the previous months, the complainant had been experiencing serious personal difficulties, including problems with drug use, skipping school, and fights with her parents. She had been living in several foster homes, with friends, and on the streets. Finally, in the days prior to April 3rd, she had decided to enter a strict group home, the Group Home. On April 3rd, the complainant had been staying at the Group Home for five days in a row. Shortly before 5:00 p.m., she was standing at a bus stop on her way back to the residence for dinner. The respondent was also at the bus stop and they began chatting. They had never met before that day. At one point, the respondent invited the complainant back to his place for some beer and she accepted. While it was her intention to get drunk at the respondent's place, she claimed that she still planned to make it back to the group home before her 9:30 p.m. curfew. [23] The complainant’s version of the subsequent events is as follows. She and the respondent walked to the respondent's apartment and stopped there briefly while he checked his telephone messages. After this, they walked to the beer store where the respondent bought a 24-pack of beer. During their walk, the respondent began talking in a suggestive manner, implying that he was interested in sex. The complainant testified that she told him she just wanted to drink with him. [24] Back at the respondent’s apartment they drank beer and continued talking. She told him about her personal circumstances and that she was 15 years of age. In the course of the conversation, the complainant realized that the respondent had been dating the daughter of one of her former foster mothers. She recalled that the mother had said some rather negative things about the respondent. During this time, the respondent continued to be flirtatious, to the point where the complainant felt uncomfortable. On several occasions the respondent asked the complainant if she wanted to spend the night but she declined. The complainant did not flirt back with the respondent. Instead, she became increasingly quiet and withdrawn. The complainant was thinking of leaving the entire time, but she stayed because she felt intimidated by the respondent's body language and things he was saying. For instance, when the complainant turned quiet at one point, the respondent became frustrated and walked around the room, hitting his fist against the wall and asking her why she was so quiet and if he had done something wrong. [25] Later in the evening, the complainant moved towards the front door. The respondent stood in front of the door and asked, “[Why] do you want to leave, am I doing something?” The complainant did not want to “offend” the respondent so she returned to her chair and continued drinking. [26] By this point, the complainant was on her fourth or fifth beer and was pretty drunk. She acknowledged that her consumption of alcohol affected her recollection of the evening's events. The complainant refused the respondent’s invitation to sit beside him on the couch. The respondent grabbed her chair, pulled it over next to the couch, and then leaned over towards her on the arm of her chair. The complainant could not recall what he said at this point but the incident “sort of freaked [her] out”. At some point, the respondent backed off and again asked the complainant why she was being so quiet. [27] At one point, the complainant went to the washroom. (She disagreed with defence counsel’s suggestion that her purpose in doing so was to get some massage oil because the respondent had offered to give her a back massage.) When she returned, the respondent was lying on the bed, fully clothed. He asked her to sit on the bed. Although she felt awkward, she sat down on the edge of the bed. [28] The respondent started playing with the complainant’s hair. She did not say anything because she was scared. The respondent put his hand on her shoulder and tried to lay her down on the bed. The complainant tried to stay sitting up but the respondent became more forceful and pushed her down. The complainant testified, “He didn’t push me hard, but he was forceful.” She felt that if she had tried hard enough, she could have remained in a sitting position. She did not try hard enough, however, because she felt intimidated. [29] When asked if the respondent said anything when he pushed her down on the bed, the complainant testified: A. Umm, he, he asked me if I wanted a condom and I, I said no, ‘cause I didn’t want to have sex. Q. What did you say to him when he asked you that? A. Well, I, I just said no, and then I just said no. [30] On cross-examination, the complainant testified that she did not say “No, I don't want to have sex.” Rather, at this point, she just said “no”. With the complainant lying on her back, the respondent began kissing her lips and neck. She did not kiss him back. He then started removing her pants by undoing the drawstring that held them up. He pulled her pants down to about mid-thigh. The complainant tried to stop him by pulling them back up so he pulled them down again, this time managing to take them right off her legs. After this, he took the complainant’s underpants off and put them at the end of the bed. [31] The complainant, who was still on her back, squirmed and moved backwards towards the top of the bed, trying to sit up. By this point, she felt very drunk. She was also scared and uncomfortable and was becoming increasingly withdrawn. After removing the complainant’s pants and underwear, the respondent took off her shirt and bra. He also removed his own shirt, pants, and underwear. The complainant testified: A. He ah, I tried to say something, like a, I said no, you know, I said no and I just sort ah, I squirmed again, I, I tried to back up again and I don't know whether he heard me or not, but I said it. Q. How loud did you say it? A. I think it was loud enough, I, I was fairly quiet, but I'm pretty sure I said it loud enough. [Emphasis added.] [32] After the complainant had said no, and while she was still lying on her back, the respondent performed oral sex on her. She agreed that she did not try again to push the respondent away. She testified that she did not think that there was anything else she could do as she had already told him “no” and tried to back away when he removed her clothing. She also agreed that she could not be sure that he heard her say “no”. [33] The respondent began having intercourse with the complainant. At one point, the complainant started squirming backwards and he stopped. The complainant curled up in a ball with her arms around her knees and sat at the top corner of the bed near the pillows. She was quiet and withdrawn. The respondent seemed agitated and frustrated and he said, "We don't have to have sex...when a girl says no she means no." [34] The respondent then left the bed for a couple of minutes. When he returned, he started playing with the complainant's hair and kissing her neck. He laid her down again by pulling her legs out so that she was stretched out on the bed. Then he began performing oral sex on her. The complainant testified: Ah, he said when a girl says no, she means no, and he kept playing with my hair, and I just, I, I, couldn't say any more you know, like I couldn't, I couldn't do any more, so when you know, he laid me down again, I just, I just laid there like. [35] Next, the respondent flipped the complainant over. Although she tried to resist and remain on her back, she ended up on her hands and knees and the respondent had intercourse with her. Then he flipped her over again, so that she was on her back, and continued to have intercourse with her for a couple of minutes. The complainant was unresponsive. When he stopped having intercourse, the respondent masturbated (the complainant thought he ejaculated) and then went to the washroom. [36] The complainant wrapped herself in blankets and curled up and faced the wall. When the respondent returned from the washroom, he went under the covers, put his arm around the complainant and held her with some force. He fondled her vagina with his hand and then rolled over and went to sleep. Eventually, the complainant went to sleep. She testified that it was too late and she was too drunk to return to the group home. The following day, the complainant left the apartment and went to the home of some friends. She told them what happened and they convinced her to go to the police. [37] At the end of her evidence in-chief, the complainant repeated that she did not agree to participate in any sexual activity with the respondent. She never flirted with him or responded encouragingly to any of his suggestive comments or flirtatious behaviour. [38] The respondent was 23 years of age in April 1998. He had a lengthy criminal and youth record including convictions for crimes of dishonesty. His version of events after the encounter at the bus stop was very different from that of the complainant. [39] The appellant denied making any suggestive comments on the way to his apartment. At the apartment they talked and listened to music. He claimed that the complainant never told him her age. He denied that he “came on” to the complainant or that she began to leave at one point. He denied punching or banging the wall. The respondent testified that after chatting and drinking beer for a couple of hours, he sat on the bed because the couch had become uncomfortable. The complainant remained on a chair. Around this time, the respondent brought up the topic of back massages, and he either offered to give the complainant a back massage or she asked him to give her one. In any event, the complainant went to the washroom, and, while she was in there, the respondent asked her to bring out some lotion that he kept in the medicine cabinet. She returned with the lotion and sat down on the bed beside the respondent (who was sitting in the middle of the bed). [40] The respondent testified that once the complainant was on the bed, he asked her if she wanted a massage and she said “sure”. Without further prompting, she took off her shirt and lay down on her stomach wearing only her bra. As the respondent began applying lotion to the complainant’s back, he noticed her bra was in the way. Not wanting to get lotion on it, he asked the complainant if she wanted him to undo her bra and she said "sure". The respondent undid the bra and began massaging her back, from her neck down to her waist. After about ten minutes, the respondent stopped massaging because his wrists started to hurt. He lay down beside the complainant and fastened her bra. They were lying on the bed facing each other and staring into each other's eyes. At some point, they started kissing and then “one thing led to another”. The respondent maintained that the kissing was initiated by both of them at the same time. [41] After a couple of minutes of kissing and hugging, the respondent reached down and undid the drawstring on the complainant's pants. The complainant grabbed her pants and underwear, pulled them down, and put them at the side of the bed. The respondent kissed his way down her body — from her neck to her breasts to her stomach — and then performed oral sex on her for about five minutes. After this, he pulled down his own pants and underwear and had intercourse with the complainant while she was on her back. The respondent denied ever flipping the complainant over and having intercourse with her a second time while she was on her hands and knees. [42] In chief, the respondent testified that the complainant’s shirt remained on the floor beside the bed after he had finished massaging her. On cross-examination, however, he testified that she put her shirt back on after the massage, and that as he was kissing his way down her body, she removed her shirt again but left her bra on. While he was kissing her, he was feeling her breast under her bra. [43] The respondent testified that after a minute or two of intercourse, he stopped and asked the complainant if he should get a condom. The complainant said that would be a good idea, so he went to the washroom to get one. But when he returned with the condom, he had lost his erection. He lay down on the bed and tried masturbating but he could not become erect. He eventually gave up and rolled over and drank his beer. When they had both finished their beers, the respondent turned down the music and they went to sleep. [44] In chief, the respondent testified that the complainant never said “no” during the sexual activity. He testified that he told her that, “if you don't want to do this, that's fine, I mean ah, I understand because ah, I know when a girl says, like, like she said, I understand if a girl says no, they mean no”. On cross-examination, however, the respondent testified that during the first couple of minutes of intercourse, before he mentioned anything about a condom, the complainant said “something about no”. He wasn’t sure if she meant no because she wanted him to put on a condom and that is why he asked her if she wanted him to get a condom. It was when he returned from the bathroom that he told her, “When a girl says no ... I understand that she means no.” [45] The respondent testified that from his perspective, the complainant was “willing” the whole time. She did not resist in any way during the sexual contact. If she had, he would have stopped. He denied that she ever squirmed away from him up to the top of the bed, or that she was ever curled up in a ball as she had described in her testimony. THE POSITIONS OF THE PARTIES AT TRIAL [46] The respondent’s principal defence was that the complainant consented to the sexual activity. Defence counsel submitted that the complainant’s denial of consent should not be accepted. She submitted that her evidence did not make sense and the true characterization of the events was simply that, for a number of reasons, after the fact the complainant regretted the encounter. As she put it, “[the complainant] did consent to that sexual activity and now feels differently about it”. Counsel made only brief mention of the alternative defence of mistake. She submitted: And even if she wasn’t consenting, I would submit that it’s a case where [the respondent], based on what she says happened and on her behaviour, may well have believed that she was consenting, and certainly it would be enough to raise a reasonable doubt, in my submission.” [47] Defence counsel did not point to any particular behaviour that, in her view, constituted a foundation for the defence of mistake. [48] Crown counsel submitted that there was no basis for the defence of mistake because the respondent did not give evidence that he believed “that she was consenting, based on the evidence of what was happening”. Crown counsel submitted that the case was one of consent or no consent; that the complainant and respondent had given diametrically opposed versions and on his version the complainant was a willing participant. THE TRIAL JUDGE’S REASONS [49] In his reasons, the trial judge briefly reviewed the two versions of events as testified to by the complainant and the respondent. Regrettably, he made few findings of fact and did not indicate which version of events he accepted. For example, the trial judge did not indicate whether he found that there were two acts of intercourse or whether the massage episode occurred. Nor did he resolve the question of when the complainant said “no”, whether the respondent heard her, and whether the conversation related to the use of a condom. [50] The critical portion of the reasons, where the trial judge applied the law to the facts, is as follows: I have no difficulty finding that the complainant was not an active participant in the sexual activity. Indeed, I accept her evidence that in her mind, she had decided she didn’t want to have sexual relations with the accused that night. Clearly, if it was apparent to the accused by either the words or actions of the complainant that she was not consenting to the sexual contact, he is guilty of sexual assault. It was, on the evidence of the complainant, apparent to her that the accused was interested in engaging in sexual activity with her. He was very flirtatious and made sexually suggestive comments. He invited her to sit on the bed and then initiated intimate contact. It is common ground that she did say “no” at one stage, although, on the evidence, it is not clear to me just when that was said and under what circumstances. But, whatever the circumstances, that was the only protest she verbalized. I also appreciate how difficult it must have been for her, as a 15 year old with limited life experience and limited life skills, to deal with this threatening situation. I expect she quite simply didn’t know what to do. However, on all the evidence, I am unable to conclude that she expressed by words or conduct, a lack of agreement to engage in such activity. Having considered all of the circumstances, I have concluded that there is evidence to support the conclusion that the accused had an honest, if mistaken, belief that the complainant was consenting. I am, therefore, left with a reasonable doubt, the benefit of which I must, according to law give to the accused. [Emphasis added.] ANALYSIS [51] The defence of honest but mistaken belief in consent in cases of sexual assault was first dealt with by the Supreme Court of Canada in R. v. Pappajohn (1980), 52 C.C.C. (2d) 481. In that case, at p. 514, McIntyre J. indicated that the defence can only be put to the jury, or considered by the trier of fact, if there is an air of reality, which requires “some evidence beyond the mere assertion of belief in consent by counsel for the appellant”. Until the decision in R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 (S.C.C.) there was never a statement by a majority of the court of the minimum circumstances which in law would give rise to the defence and thus provide a foundation for an air of reality. In R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.) at 533, Cory J. held that “the defence of mistaken belief in consent will be invoked rarely,” as sexual assault is not a crime that “lends itself to commission by mistake or by accident.” But he also held at p. 531 that “the trial judge must consider all the evidence and all the circumstances” before ruling on whether there is an air of reality to the defence. Further, although the bare assertion of a mistaken belief will not suffice, the necessary factual foundation can come from any number of sources, including the evidence of the complainant. [52] On the other hand, at least since Pappajohn, it has been relatively clear from the Supreme Court of Canada decisions that what might be termed neutral conduct on the part of the complainant cannot alone serve as a foundation for the defence of mistake. The fact that the complainant did not protest, that she did not say “no”, that she was not physically injured, that her clothes were not torn, that she voluntarily placed herself in unfortunate circumstances, although proffered as an indication that the accused could have believed she was consenting did not successfully raise the defence: R. v. Pappajohn at 514; R. v. Robertson (1987), 33 C.C.C. (3d) 481 (S.C.C.) at 488 and 497; R. v. Reddick (1991), 64 C.C.C. (3d) 257 (S.C.C.) at 259; R. v. Livermore (1995), 102 C.C.C. (3d) 212 (S.C.C.) at 222. [53] More importantly, at least since the decision of the Supreme Court in R. v. Esau (1997), 116 C.C.C. (3d) 289, it has been apparent that, in law, something more than lack of resistance was required. As Major J. said for a majority of the court at p. 297: In this appeal, it is the totality of the evidence that gives the defence an air of reality. The absence of resistance or violence is only one factor that must be considered alongside the accused's evidence that the complainant did and said things that led him to believe she was consenting. I intended my reasons to conclude that the absence of resistance or violence alone could not raise the defence. [Emphasis added.] [54] While prior cases have tended more often to emphasize the facts that will not support an air of reality,1 in Ewanchuk, a case decided after the trial of this matter, Major J. for a majority of the court set out the minimum legal requirements to support the defence of mistake in sexual assault cases. As the passages set out below demonstrate, not only must there be more than an absence of resistance, but the requisite belief on the part of the accused is not simply that the complainant was consenting. He must have a belief as to the manner in which that consent was manifested. The accused must believe that either by actions or words the complainant said “yes”. Otherwise the belief will be deemed not to be an honest one. Major J. held as follows, at pp. 499-500: 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. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law: 273.1(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis- à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place. In the context of mens rea -- specifically for the purposes of the honest but mistaken belief in consent -- "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate. [Emphasis added.] [55] And at p. 504: In cases such as this, the accused's putting consent into issue is synonymous with an assertion of an honest belief in consent. If his 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. Moreover, to be honest the accused's belief cannot be reckless, wilfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven. [Emphasis added.] [56] And at p. 501: For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.), [1994] 2 S.C.R. 3, 89 C.C.C. (3d) 96. Similarly, an accused cannot rely upon his purported belief that the complainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. [Emphasis added.] [57] In my view, the trial judge in this case asked himself the wrong question. He asked whether it was apparent to the respondent from the complainant’s words or actions that she was not consenting. He answered that question in the negative. He was unable to conclude that “she expressed by words or conduct, a lack of agreement to engage in such activity” and therefore found that the defence of mistake was established. However, that was not sufficient to establish the defence. Applying Ewanchuk, the question was whether the accused honestly believed that the complainant had communicated consent. The trial judge never answered that question, nor, in my view, did he make the findings of fact from which this court could conclude that the respondent held that belief. [58] I believe that one source of confusion may lie in s. 273.1 of the Criminal Code, where Parliament has provided a definition of consent for the purposes of sexual assault. Part of that definition is expressed in the negative: (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) 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. [Emphasis added.] [59] However, the fact that the complainant did not express by words or conduct a lack of consent did not establish consent in fact and is not, in light of Ewanchuk, a sufficient factual foundation for the defence of mistake. What else is required will depend on the circumstances of the case. In R. v. Livermore (1995), 102 C.C.C. (3d) 212 (S.C.C.) at 221-22, McLachlin J. gave some examples: The accused's bare assertion that he "believed" that the complainant consented must be supported by something in the circumstances that suggests that he may honestly have held such a belief: Pappajohn, supra. Otherwise, the goal of screening out the spurious defence based on nothing but the accused's facile assertion of belief will be thwarted. Examples of such circumstances are well documented in the jurisprudence. For example, sexually aggressive conduct by the complainant, a previous relationship of intimacy coupled with no reason to suspect a change of heart, and the case of the known prostitute are frequently cited as examples of situations in which an honest mistake may be made as to consent. [60] In my view, but for the error in law by the trial judge as to the elements of mistaken belief in consent, the verdict would not necessarily have been the same. His findings that she did not express a lack of agreement merely set the stage for a possible successful defence. As Major J. said in Ewanchuk at p. 501, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence.”2 If there was nothing more, the result should have been a finding of guilt. An honest belief required that the trial judge at least have a reasonable doubt that the respondent believed she had communicated consent. Simply put, it was not enough that the complainant did not express a lack of agreement. [61] Accordingly, the Crown is entitled to at least a new trial. Mr. Kelly submits, however, that there is no air of reality to the defence and that since the trial judge found as a fact that the complainant did not consent to the sexual activity, this court should enter a finding of guilt. In R. v. Cassidy (1989), 50 C.C.C. (3d) 193 (S.C.C.) at 200, the Court held that an appellate court may substitute a conviction on a Crown appeal from an acquittal by a trial judge only if “all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue”. This test is to be strictly applied. [62] In the circumstances of this case, the Crown is only entitled to a finding of guilt in this court if (a) there is no air of reality to the defence, or (b) the trial judge found all the facts that support a guilty verdict if he had properly applied the law. In my view, there is an air of reality. Further, while the trial judge did not make sufficient findings to support a defence of mistake, equally he did not make sufficient findings from which this court could conclude that defence could not succeed had he properly applied the law. I will deal with each of these conclusions below. (a) Air of reality [63] For there to be an air of reality to the mistake defence, there must be evidence beyond the assertion by an accused that he believed the complainant consented: R. v. Osolin, supra at pp. 533-34. The accused must also be able to point to evidence that he believed that the complainant “effectively said ‘yes’ through her words and/or actions”: R. v. Ewanchuk at p. 499. [64] In approaching the question of air of reality, the surrounding circumstances cannot be ignored. The complainant was only 15 years of age and had never met the respondent. Thus, there was no history of consensual sexual activity. But, there is also no dispute that the complainant and the respondent had been drinking and the complainant conceded that her recollection of events was affected accordingly. [65] According to the complainant, prior to the act of oral sex she tried to pull up her pants when he pulled them down, she said “no” and squirmed away. On the other hand, the complainant also testified that before this incident, the respondent asked her directly if she wished him to use a condom and she said, “no” because she did not want to have intercourse. The complainant, however, did not tell the respondent her reason for not wanting him to use a condom. [66] According to the respondent, after the consensual back rub, he and the complainant kissed and hugged and then she pulled her pants off after he undid the drawstring. In the circumstances of this case, where there is no suggestion that the consent was obtained by threats, her act of taking off her pants, if believed, is evidence of actual consent, not mistaken belief in consent: R. v. Ewanchuk, at p. 503. [67] What remains from the two stories to lend an air of reality to honest mistake is the following. Based on the respondent’s story it is possible that a trier of fact could find that the complainant did participate in the back rub, including removing her bra, and did participate in the kissing and hugging that immediately preceded the oral sex. A trier of fact could also accept the respondent’s evidence that when the complainant did say “no” in the course of the first act of intercourse, he stopped and made inquiries of the complainant concerning the use of a condom and that thereafter there was no more sexual activity. [68] It is also possible that a trier of act could find that the complainant did not squirm, did not pull up her pants and when directly asked, said “no” in a way that the respondent could have believed she was saying no to the use of a condom, not to sexual activity. Although they disagree on the timing, both the complainant and the respondent agree that there was a question about a condom. The question and answer about the condom must be set against the background of the events that night, including the complainant’s testimony about the constant flirtatious talk and the accepting of the invitation to sit on the bed. [69] This is not an assertion that “no means yes”: R. v. Ewanchuk, at p. 501. The respondent never claimed that although the complainant said “no” he believed that she really wanted to engage in sexual activity. Further, it was the complainant's evidence that she said “no” in answer to the question about whether she wanted the respondent to use a condom. A trier of fact could find, given the circumstances previously outlined, that the respondent believed that the “no” related only to the condom use and that the complainant by conduct was communicating her agreement to sexual activity. It is not for this court, which has not seen or heard the witnesses, to pass on the improbability or otherwise of such a finding. As McLachlin J. said in R. v. Cuerrier (1998), 111 C.C.C. (3d) 261 (S.C.C.) at 27, the nature of consent is complex and diverse. "People can and do cast caution to the winds in sexual situations." The air of reality test is met if there is some evidence upon which a properly instructed trier of fact could form a reasonable doubt as to mens rea: R. v. Ewanchuk at p. 502. The reasonableness or unreasonableness of the belief is a factor for the trier of fact: R. v. Bulmer (1987), 33 C.C.C. (3d) 385 (S.C.C.) at 329; R. v. Darrach (1998), 122 C.C.C. (3d) 225 (Ont. C.A.) at 252-53; Criminal Code, ss. 265(4), 273.2. [70] As Major J. said in Ewanchuk at p. 504, “[c]ases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community’s sense of safety and justice.” While the law must afford men and women “the peace of mind of knowing that their bodily integrity and autonomy” will be respected, at the same time, the law must “protect those who have not been proven guilty from the social stigma attached to sexual offenders.” This may be one of those cases of a true misunderstanding. That question should be resolved by a trier of fact who has the advantage of observing the principle participants, unless this court can say with certainty that based on the findings of fact by the trial judge a finding of guilt was inevitable. (b) Necessary findings of fact [71] The trial judge found that the complainant was not an active participant in the sexual activity, that she had decided that she did not want to have sexual relations with the respondent that night, and that she did not express by words or conduct a lack of agreement to engage in such activity. While those findings are sufficient to find that the complainant did not consent in fact,3 with only those findings, it is my view that it is not possible to find that had the trial judge properly applied the law of mistake he would necessarily have convicted the respondent. [72] In view of his findings that the complainant did not express by words or actions that she was not consenting, the trial judge must have found that the respondent did not hear the complainant say "no", or that she said “no” only to the condom use. Presumably, as well he was not satisfied that her squirming actions indicated a lack of consent. As indicated, the trial judge did find that the complainant was “not an active participant in the sexual activity”. That finding is inconsistent with the respondent’s evidence that the complainant pulled her own pants off, but is not inconsistent with the complainant’s evidence of sexual overtures by the respondent and the respondent’s evidence of the massage and the hugging and kissing. Further, the finding that she did not express by words or conduct a lack of agreement to sexual activity suggests she did not pull up her pants, as she claimed, and that she did not say “no” to sexual activity. [73] Based on those findings, it is not possible to say that the trial judge would have convicted had he applied the proper test for the mistake defence. I place particular emphasis on the question about condom use. The trial judge stated that it was not clear to him just when the complainant said “no” and under what circumstances. He certainly did not reject the possibility that this incident concerned the use of a condom rather than lack of consent to intercourse. The trial judge also did not resolve the dispute about the number of acts of intercourse. If there was only one and if the respondent made it clear to the complainant that he would not proceed if she did not want to, this would support a finding of mistake and would also go a long way to meeting the requirements of s. 273.2(b), which provides that the defence of mistaken belief in consent is not available if “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. [74] To summarize, the Crown has shown that the verdict would not necessarily have been the same if the trial judge had not misdirected himself. However, there is sufficient evidence from the stories of these two principal witnesses to provide an air of reality to the defence of mistake. The trial judge had the unique advantage of having seen and heard the complainant and the respondent. It is apparent to me from the findings that he did make that the trial judge did not accept the full account of either person. It will be for a properly instructed trier of fact to determine whether the mistake defence succeeds. DISPOSITION [75] Accordingly, I would allow the appeal, set aside the acquittal, and order a new trial. Signed: “Marc Rosenberg J.A.” _______________________________ 1 See in particular the concurring reasons of L’Heureux-Dubé J. in R. v. Park (1995), 99 C.C.C. (3d) 1 at 17-18. 2 Professor Don Stuart argues in "Ewanchuk: Asserting 'No Means No' at the Expense of Fault and Proportionality Principles" (1999), 22 C.R. (5th) 39 at 46-7, that this statement is obiter in the Ewanchuk case and goes beyond what Parliament intended in its reform of the consent rules for sexual assault cases. Be that as it may, it represents the considered opinion of a majority of the Supreme Court: Sellars v. The Queen, [1980] 1 S.C.R. 527 at 530 referring with approval to this court's decision in Ottawa v. Nepean Township et al., [1943] 3 D.L.R. 802 at 804. 3 In my view, nothing turns on the fact that the trial judge found that the complainant had decided that she did not “want” to have sexual relations with the respondent. In my view, it is implicit in that finding, in the circumstances of this case, that he found that the complainant did not voluntarily agree to engage in the sexual activity in question, see s. 273.1(1).