Sexual Assault under ss. 265(1) and 271
Applications Under Section 276
Honest but mistaken belief in age
Delayed Disclosure
Sexual Assault under Section 265(1) and 271
The Test
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Directly or indirectly touching a person's body
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For a sexual purpose
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Without their consent
Element #1: Touching a Person's Body
To commit a sexual assault, it is not necessary for the accused to touch or even verbally threaten the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault: R v Edgar, 2016 ONCA 120 at para 10
Element #3: Without Consent
The failure to disclose a condition that poses a significant risk of serious bodily harm amounts to fraud that vitiates consent to sex: R v Boone, 2016 ONCA 227 at para 15. The Crown still must prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV-positive: Boone at para 16
Evidentiary Issues
Expert evidence on the behaviour of child sexual assault victims, sometimes known as Child Sexual Abuse Accommodation Syndrome and popular in the 1990s, has been found to be inadmissible. An allegation of a scientific link between the complainant’s weird/bad behaviour and sexual abuse by an expert could be unduly prejudicial to the accused. Triers of fact are capable of relying on their common sense and experience to understand why a complainant may act in a certain way: R v. R.O., 2015 ONCA 814
Evidence of possession of child pornography does not provide evidence of motive to commit sexual assault on a minor and is highly prejudicial on such counts: R v. L.O. 2015 ONCA 394
Applications under section 276
General Principles
Section 276 deals with whether or not evidence that is "relevant to an issue at trial" and, thereby, ordinarily would be admissible should nonetheless be screened out. Collateral matters should already have been screened out by the collateral fact rule: R v SB, 2016 NLCA 20 at para 26; aff'd at 2017 SCC 16
the process prescribed by s. 276 for the admission of evidence of prior sexual history is mandatory. It applies even when the evidence in question is sought simply for the purpose of testing the complainant's credibility on a prior inconsistent statement: R v Vassell, 2016 ONCA 786 at paras 4-8
Previous exposure to risk / unprotected sex
Evidence of a complainant’s general disposition to expose himself to an unknown risk (i.e. by having casual unprotected sex) is not probative of whether or not a complainant would be willing to accept a serious known risk.: R v Boone, 2016 ONCA 227 at paras 38, 40.
However, evidence that a complainant previously consented to unprotected sex knowing his/her partner has a transmittable disease may be sufficiently relevant to the determination of whether the complainant consented to the same risk with the accused: Boone at para 42
Sexual Interference
Exploitation is not a requirement for the offence of sexual interference. Overt indicia of exploitation may diminish the credibility of an accused’s purported mistaken belief in the complainant’s age, or the reasonableness of the steps taken by that accused, but they are not required for the offence itself: R v George, 2017 SCC 38
Defences
General
Whether there is an air of reality to a defence is a question of law and reviewable on a standard of correctness: R v. ADH, 2015 ONCA 690: R v. Budhoo, 2015 ONCA 912
The Defence of Honest but Mistaken Belief in Age: s.150.1(4)
Where a mistake of age defence is raised under s. 150.1(4), the accused must point to some evidence that he or she honestly believed the complainant was 16 years or more and that he or she took all reasonable steps to ascertain the complainant’s age. If the accused meets this evidentiary burden, the Crown is required to prove beyond a reasonable doubt that the accused did not have the requisite belief or that he or she failed to take all reasonable steps to ascertain the complainant’s age: R v Chapman, 2016 ONCA 310 para 36
While the law does not require the accused’s testimony to establish an air of reality to the defence of honest but mistaken belief in consent, the air of reality of the defence may be negated by his testimony (e.g., where he asserts he had no sexual contact of any kind with the complainant): R v. ADH, 2015 ONCA 690
The jurisprudence provides that the requirement set out in s. 150.1(4) is an earnest inquiry or some other compelling factor which negates the need for an inquiry. Whether an accused took all reasonable steps is fact-specific and depends on the circumstances: Chapman at paras 28-30. The more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them: R v George, 2017 SCC 38
There must be some compelling factor that obviates the need for an enquiry by the accused and the accused’s subjective belief as to the complainant’s age is relevant but not determinative of this question: Chapman at para 31
The word “all” in respect of referencing “reasonable steps” is important. While it is only necessary for the accused to create a reasonable doubt, the evidence which he uses to establish such doubt must be directed to the word [“all”] as much as to any other part of the subsection: Chapman at para 32
One important part of the analysis is whether the complainants had portrayed themselves as “older than 16,” including their age-related appearance, statements, behaviour, and conduct: Chapman at para 33
What steps would have been reasonable for the accused to takes depends on the circumstances. Sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; the times, places, and other circumstances in which the complainant and her conduct are observed by the accused, and the age differential between the appellant and the complainant: Chapman at paras 41, 42, 43
Note, however, that a reasonable person would appreciate that underage children may apply make-up and dress and act so as to appear older: Chapman at para 53
Evidence as to the accused’s subjective state of mind is relevant but not conclusive because an accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently: Chapman at para 41
In order to avail himself of the defence, an accused need not always expressly question a complainant about his or her age, or otherwise seek and obtain conclusive proof of age: Chapman at para 50
Reasonable steps must precede the sexual activity but the evidence to prove reasonable steps need not. When determining the relevance of evidence, both its purpose and its timing must be considered. Evidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity in question, may be considered by the trier of facy. Similarly, evidence demonstrating the reasonableness of the accused person’s perception of the complainant’s age before sexual contact is relevant, even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity: George
Defence of Sexsomnia
See R v Hartman, 2015 ONCA 498
Delayed Disclosure
For a discussion on the significance of delayed disclosure in sexual assault cases, see R v DD, 2000 SCC 43; see also R v DP, 2017 ONCA 263 at paras 28-31