Imagine the following scenario.
A husband tells his wife that he wants to have sex. He forcibly takes her by the wrist, throws her onto the couch, removes her clothing, and then forcibly has vaginal sex with her. During this violent act, she tells him to stop three times, but he doesn’t. Notwithstanding her clearly stated objections, the husband and wife both believe, generally, that he has the right to have sexual relations with her whenever he wants.
Is this sexual assault?
The substantive law relating to the elements of sexual assault are not a matter of dispute. In order for a court to find an individual guilty of sexual assault under the Criminal Code of Canada, the Crown must prove the following beyond a reasonable doubt. The accused committed the wrongful act (the actus reus) and had the requisite mental state (the mens rea or guilty mind) while perpetrating the act.
As the Supreme Court of Canada has stated, the actus reus of sexual assault is established by the proof of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first two are determined objectively while the absence of consent is assessed on a subjective basis from the point of view of the complainant at the time the act took place. From the facts above, it appears as though all three elements can be found. The vaginal sexual intercourse is clearly a touching of a sexual nature. The uttering of the word “stop” three times clearly indicates that the wife was not subjectively (or for that matter objectively) consenting.
With respect to proving that an accused had the requisite state of mind at the time of the sexual assault, the Supreme Court has articulated that the “mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.” As you read the facts above, it is clear that the husband in this scenario intended to touch his wife (by engaging in sexual intercourse) and had clear knowledge (through her utterance of the word “stop” three times) that she did not consent.
An accused can be mistaken as to whether someone was consenting to sexual intercourse, and this may serve as a defence negating the mens rea component of the offence (provided certain key conditions are met). In the above scenario, the husband was not mistaken as to whether she was consenting. He was, however, labouring under a mistake of law (as was the wife) – that he could have sex with her whenever he felt like it regardless of whether she consented. Mistakes of law are generally not defences to criminal acts, including sexual assault.
This all seems logical right?
The scenario above was manifested in a recent decision of the Ontario Superior Court, where Justice Robert Smith acquitted the accused. In R v HE, the husband sexually assaulted his wife (in 2002) in largely the same manner as I set out above. As part of the court’s overall assessment of the evidence, it undertook a credibility assessment of the witnesses, including both the husband and wife (who were by the time of the trial separated). The court concluded that the wife was credible. I shall quote from paragraphs 15 and 16 from the decision (with emphasis added):
 Z.’s [the wife’s] evidence was credible. She answered questions in a straight forward manner. Her evidence that the accused believed he had a right to have sex with his wife was not contradicted. The accused acknowledged that he exercised control over his wife’s body by refusing to allow her to have an abortion when she became pregnant with F. The accused did not deny this but testified that he convinced her to do the right thing and to have the child.
 I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so.
It is worth noting that part of her evidence was her recounting of the sexual assault in 2002 as described above. At paragraph 15, the court states her overall evidence was credible. The court did not seem to impugn her evidence on the sexual assault from 2002. By contrast, and with respect to the sexual assault that the accused perpetrated against her in 2002 specifically, the court did not view his evidence with the same (or seemingly with any) degree of confidence. Indeed, the accused completely denied that the sexual assault occurred at all. The following passage illustrates this.
 The accused was argumentative and evasive when cross-examined and often did not answer the question posed. I find that his evidence was not believable and did not raise a reasonable doubt [emphasis added].
So with this lead up, one might expect that the result should have been a guilty verdict regarding the sexual assault. In a paragraph, which has left many jaws dropping down into an abyss, the court concluded that the Crown failed to prove beyond a reasonable doubt that the accused had the required mens rea for the crime. Behold:
 However in such circumstances where the complainant had lived in Canada since 1989, did not make any complaint until the parties had a dispute involving access, where the complainant continued to have sex with the accused from the time of the alleged incident in 2002 until January 1, 2013 a period of approximately 11 years, I am not satisfied that the Crown has met its burden of proving beyond a reasonable doubt based on all of the evidence that the accused had the required mens rea to have sexually assaulted the complainant in 2002 [emphasis added]
Now let us all step back and recall that Justice Smith made a specific finding that he found the wife/complainant credible and that the accused/husband was not believable, particularly with respect to the sexual assault in question. So this does not appear to be a case where the court had a reasonable doubt with respect to the credibility of both the accused and complainant (rather just the former). Furthermore, the court did not seem to have a reasonable doubt with respect to the actus reus of the sexual assault in 2002 – namely that there was a touching of a sexual nature and there was an absence of consent on the part of the complainant.
In paragraph 17 (quoted above), the court is essentially stating that it had a reasonable doubt that the evidence showed the accused possessed the guilty mind (or mens rea) necessary to have sexually assaulted the complainant in 2002 when the act in question took place. Again, let’s reflect on the elements of sexual assault with respect to mens rea. It requires intent to touch the complainant (that happened here when he forced her to have sexual intercourse) and with knowledge that she was not consenting (also present here – she said “stop” three times). There is no evidence to suggest that the accused was mistaken as to the complainant’s consent on that occasion – mistake of fact. He was, at best, under a general misapprehension that her consent did not matter and he could have sex with her at his pleasure – this is a mistake of law, or at best – a mistake of mixed fact and law. Either way, it’s not a defence and does not negate mens rea. Indeed, the Criminal Code asserts the following: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”
One strongly suspects and hopes that the Crown will appeal this decision. This sends a terrible message to victims/survivors of sexual assault in marital contexts that their spouses will be acquitted if a husband or both spouses were under a mistaken belief regarding the law that spouses have the right to expect sex on demand. It may also send the wrong message that where individuals originally come from a cultural and/or legal context where marital rape is still permitted or otherwise socially tolerated, perpetrators may have an escape route in the Canadian criminal justice system if prosecutions transpire here. In this case, both the accused and the complainant were originally immigrants and held mistaken beliefs that the conduct in question here was legal (and until 1983, marital rape was not prohibited under Canadian criminal law). It was only after speaking to a police officer in 2013 that the complainant learned that it was permissible for spouse to refuse sexual relations. This decision may discourage such complainants from coming forward, and there are plenty of reasons why many complainants do not already.
1. R v Ewanchuk,  1 SCR 330 at para 23, 169 DLR (4th) 193).
2. Ibid at para 25.
3. Ibid at para 23.
4. There is a defence based on mistake of law called officially induced error. The elements of such a defence can be found here: R v Jorgensen,  4 SCR 55, 129 DLR (4th) 510.
5. R v HE, 2017 ONSC 4277 at para 10 [HE].
6. Ibid at para 12.
7. The accused denied ever sexually assaulting his spouse. Furthermore, he denied having sex assaulted the complainant in 2002 on the basis that he underwent hair transplant treatment prior to the sexual assault and was advised by his doctor not to have sexual relations. The court’s response was as follows:
 The accused denied ever having sexual relations with his wife without her consent, but specifically denied having sex with his wife during the 10 – 14 days after he had his hair transplant. He testified that he followed the advice of his doctor to abstain from sexual relations for 10 – 14 days after the transplant, and therefore the incident could not have happened. The accused did not call any medical evidence to show this was standard medical practice and I find his evidence in this regard does not accord with common sense to a reasonably informed person.
8. Criminal Code, RSC 1985, c C-46, s 19.
9. I would stress here that I am in no way trying to suggest that sexual assault within the context of marital relations is unique to immigrants. As with cases of domestic violence, sexual assaults within the context of marital relationships are perpetrated by individuals born, raised and acculturated in Canada.
10. HE, supra note 5 at para 6.