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  • Ms. Kacey B

Cultural Unawareness of the Law – An Untenable and Inexcusable Defense

“Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”,<1> is a statement that is cited in our Criminal Code, iterated by individuals of authority, and even proliferated in pop culture. It seems to be safe to contend that most individuals living in Canada are fully aware that ignorance will play no defense to a criminal offence. Yet apparently, Judge Robert Smith found it appropriate to allow ignorance of the law to affect the court's assessment of alleged mens rea in a sexual assault case.

R v H.E. illustrated a disturbing trend in the legal system: how sexual assault cases seem to constantly be held to different standards than other assault cases. In 2017 there was a shocking outcome to what should have been a clear sexual assault case before the courts. Judge Smith heard the case where ‘Z’ claimed to have been sexually assaulted by her then-husband in 2002. Z had married her husband, the accused, in an arranged marriage in 1992.<2> In 2013, after speaking with a police officer, she was informed that a wife could withdraw consent from sexual relations with her husband.

This was contrary to what Z had grown up knowing. She had believed that the wife was the property of the husband and that consent was irrelevant. The incident in question occurred in 2002 where Z testified that she had asked the accused to cease having sexual relations with her three times, and each time he ignored her and continued the sexual assault to completion. Judge Smith in hearing the facts noted that the accused seemed to lack credility and commended Z stating that her evidence was credible and honest. Yet the accused was acquitted of all charges.

What happened? In a one-paragraph summation of his judgment, Judge Smith makes a ruling that seems contrary to the earlier evidence. Judge Smith states that the Crown had not met the burden of proof beyond a reasonable doubt that the accused possessed the mens rea to have committed sexual assault in 2002.<3> This comes shortly after Judge Smith made the comment that “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.”4 These comments appear to contradict the final judgement. Judge Smith concludes that because Z lived in Canada since 1989 and continued to have sex with the accused from 2002 to 2013 there was reasonable doubt for the accusation of sexual assault.

Many disturbing questions come to mind when reading this outcome:

Could Judge Smith truly think of no situation where Z may have felt fearful of the accused and had sexual relations with him for the safety of her children or herself?

Has Judge Smith concluded that because Z had sexual relations with her husband after the 2002 incident that her consent is irrelevant in this case?

Could it possibly be that this one circumstance in 2002, Z had not consented to sexual intercourse but on other occasions had?

Is Judge Smith implying that if you have sex with someone multiple times that your consent is no longer held to the same standard than if you had never had sexual relations with that person before?

Most concerning: has Judge Smith now considered ignorance of the law of consent to become a defense in sexual assault cases?

Following the logic laid out in R v H.E., a defendant can claim that because they were unaware of a law due to their cultural background they did not have the mens rea to commit the crime. It is difficult to imagine any other situation other than in a sexual assault that this defense would ever be tolerated in a court of law, and why is it that it is allowed in sexual assault cases? Judge Smith appears to be joining the ranks of previous judges such as Judge Gregory Lenehan <5> and Judge Robin Camp who do not seem to fully appreciate the concept of consent in their rulings and comments and the effects this can have on the greater society. A proliferation of such a defence seems unlikely, but its existence in the H.E. case demonstrates the ease with which rape myths inculcate judicial thinking far too often.

It has been with great effort that society has managed to slowly start empowering sexual assault victims. By encouraging victims to have a voice in the legal system, society may see more than a mere 6% of sexual assault victims come forward and report their attacks. It is crucial that the law mirrors the shifts seen in society and not be an archaic device that is outdated. With the recent introduction of Bill C-51, which contains a number of progressive provisions in respect of sexual assault trials, and cases such as R v Ewanchuck and R v J.A., which have strengthened the role of victims in consent law, the legal system is slowly adapting closer towards meeting the needs of victims. There is a clear shift in both general society and the legal system on the value and importance of a system which values sexual assault survivors. However, all these efforts and successes are undermined when Judges give explicit effect to rape myths. R v H.E. is a disappointing step back from the goals of society, and has allowed ignorance of the law to play as a valid defense in sexual assault cases. A successful appeal would go some distance towards limiting a gross injustice.


1 Criminal Code, RSC 1985, c C-46, s 19.

2 R v HE, 2017 ONSC 4277, 2017 CarswellOnt 16019 at para 4.

3 Ibid at para 17.

4 Ibid at para 14.

5“Read the Full Decision from the Judge Who Said ‘Clearly a Drunk can Consent’”, CBC News (3 March 2017), online: <>

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