Sexual Assault: Defences, Judicial Interpretations and Recent Cases (R v He and R v McCaw)
The Canadian legal system has made progress in cases of sexual assault in the most recent years but there is still a lot of challenges to overcome. While legislation is more encompassing of various sex crimes, in some ways the court system is still struggling to interpret the legislation. The law has been amended throughout the years and has created three general categories of sexual assault: “basic sexual assault (i.e., sexual touching or sexual intercourse without consent)…sexual assault with a weapon or threatened violence…and aggravated sexual assault, in which the victim is wounded or disfigured”.1 Unfortunately, while the legislation is there, the judgments issued from courts are sometimes questionable.
Prior to 1982, the Criminal Code defined rape as an “offence [which] required proof that a man had sexual intercourse with a woman other than his wife without the woman's consent”.2 The Criminal Code was amended due to increasing social changes during the 1970-80s and a conviction of martial rape became a possibility. The Committee on the Elimination of Discrimination against Women then published General Recommendation 19, Violence Against Women which asserted the need for protection against family violence, including rape and sexual assault, in Section 24(b).3 This meant that a husband could not rape his wife. However, in the recent case of R v H.E. the finding seems to be in opposition to, or at least undermining, the stated law.
In R v H.E., the accused was charged with sexually assaulting his wife, Z, whom had entered an arranged marriage unwillingly. 4 However, the Crown has filed for an appeal 5 and it will be interesting to see the result of that. Z believed that her husband had the right to have sexual relations with her regardless of her wishes and believed she did not have the right to refuse. She did not fully understand her own rights until 2013, after they had separated. However, in 2002 she testified regarding an incident in which she explicitly said no to sex and the accused continued. The judge deemed the husband’s assertions as not credible while the wife was deemed a credible witness and found 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”.6 But, the judge found that the Crown did not meet its burden of proving beyond a reasonable doubt based on all the evidence that the accused had the required mens rea to commit sexual assault. The main reason was because the circumstances which was that the complaint was filed after a separation and despite having continued sexual relations until 2013. 7
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.8 I would argue that in R v H.E., these requirements are met. This case raises an interesting question though: if the victim is unaware of the ability to say no, due to culture or other circumstances, is the actus reus of consent still determined by reference to the victim’s subjective internal state of mind? For policy reasons, I would argue that the failure to know that one may say ‘no’ is irrelevant – this would provide a loophole for abusers who continually manipulate and whom groom victims to believe that they are helpless. Furthermore, in R v Ewanchuk, it is stated in L'Heureux-Dubé’s judgement that “continuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable”9 (although she was referring to the mens rea standard of recklessness, the policy rationale is clear). In R v H.E. there is the incident in 2002 in which the victim’s refusal (despite what she thought about the nature of the concept of consent) is recognized as fact and that the victim just “prayed for it to end”.10 This is also, in my opinion, evidence that Z was attempting to assert her right to sexual integrity and had it violated.
Interestingly, the recent appeal of H.E. was successful, with agreement of the parties. The Court of Appeal explained:
 Mr. E. concedes that the trial judge committed reversible errors in this reasoning. He acknowledges that to the extent the trial judge based his acquittal on Mr. E.’s and the complainant’s shared belief that the complainant could not refuse to have sex with him, that belief would be a mistake of law that cannot form the foundation for an honest but mistaken belief in consent defence. He is correct. To avoid conviction based on an honest but mistaken belief in consent, the accused must believe in a state of facts that amount to consent according to law...
 Mr. E. also agrees that there was no air of reality to the honest but mistaken belief in consent defence because the diametrically opposed versions of events he and the complainant provided cannot be spliced together to give rise to a realistic prospect that Mr. E. could have mistakenly believed that the complainant was consenting...
 Mr. E. further recognizes that the factors cited by the trial judge in explaining his reasonable doubt about Mr. E.’s mens rea logically have no bearing on Mr. E.’s state of mind. Leaving aside controversies about whether these factors were even appropriate for consideration, they relate either to the complainant’s credibility or the actus reus element of her consent, but not to Mr. E.’s mens rea.
 The parties therefore agree that the appeal must be allowed and the verdict of acquittal set aside. The Crown has chosen not to ask this court to substitute a verdict of guilt. This is an appropriate concession because there were evidentiary errors made by the trial judge to the detriment of Mr. E., including permitting the Crown to present evidence about other occasions when Mr. E. is alleged to have sexually assaulted the complainant without conducting a voir dire to determine the admissibility of this discreditable conduct evidence.
 We would therefore allow the appeal, set aside the acquittal, and order a new trial.
The other recent challenge for prosecutors of sexual assault cases is R v McCaw.11 In this case, the accused attempted to argue that he consumed several intoxicating substances and entered an “extreme state of intoxication, akin to automatism, so as to cast doubt on the voluntariness of his action.”12 In Ontario, the Criminal Code s.33.1 limiting the defence of automatism to cases not involving “an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person” has not always applied (due to alleged unconstitutionality).13 In 1994, R. v. Daviault “determined that the passage of the Charter made it necessary to re-evaluate whether a strict application of the common law rule in Leary withstood constitutional scrutiny” with the application being that “drunkenness was not available as a defence to negate the mens rea for a general intent offence.”14 This case is used in Ontario cases to support challenging s.33.1.
This issue has been debated throughout Canada but Ontario seems to grapple with this issue the most. The judge in R. v. McCaw concluded with “an order allowing the application, and [in] affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act”.15 Furthermore, Judge N.J. Spies “declared s. 33.1 of the Criminal Code of no force and effect, as it is inconsistent with ss. 7 and 11(d) of the Charter, and is not saved by operation of s. 1 of the Charter.”16 This means that the trend of allowing intoxication as a defence is likely to continue in Ontario.
Unfortunately, a judgment of whether extreme intoxication can be a valid defense by one accused of sexual assault is not binding until it reaches the Supreme Court. However, a binding judgement recognizes intoxication as not a defence available to the accused in sexual assault is sorely needed as “some studies have suggested that in half of all instances, one or both parties consumed alcohol beforehand.”17 A finding of a binding judgement either way will have lasting ramifications on the prosecution of sexual assault cases.
Overall, while progress has been made in clarifying the laws around sexual assault, there are still significant issues stemming from the failure for the parties to know the fundamental principles of consent and regarding the use of the defence of intoxication.
1 Margaret A Somerville and Gerald L. Gall, “Sexual Assault” (6 February 2012) online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/sexual-assault>
3 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, (1992) online: RefWorld <http://www.refworld.org/docid/52d920c54.html>
4 R v H.E.,  O.J. No. 5345; R. v. H.E., 2018 ONCA 879
5 Andrew Duffy, “Appeal in sex assault case of man found not guilty because he thought he could have sex with wife anytime” (24 November 2017) online: Ottawa Citizen <ottawacitizen.com/news/local-news/crown-to-appeal-sex-assault-case-of-ottawa-man-found-not-guilty-because-he-thought-he-could-have-sex-with-wife-anytime>
6 R v H.E., Para 16
7 Supra, Para 17
8 Supra, Para 25
9 R v Ewanchuk  1 SCR 330 Para 52
10 Supra, Para 10
11 R v McCaw, 2018 ONSC 3464
12 Supra, Para 3
13 Criminal Code RSC 1985 c. c-46 s.33.1(3)
14 R v McCaw, Para 21
15 Supra, Para 134
16 Supra, Para 134
17 Robyn Doolittle, “HOW ALCOHOL COMPLICATES SEX-ASSAULT CASES” (17 March 2017) online: The Globe and Mail <www.theglobeandmail.com/news/investigations/unfounded-too-drunk-to-consent-how-alcohol-complicates-sex-assault-cases/article34338370/>