R v AE: The Scope of Consent - Shelly Neal
In the Criminal Code, Section 273.1 defines the required components of consent in relation to the charge of sexual assault. This provision also includes a limitation of the potential defence to sexual assault, aptly named “The Defence of Honest Belief in Consent,” under Section 273.2, stating:
Where Belief in Consent is not a Defence 273.2 It is not a defence to a charge under section 271, 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
Honest but mistaken belief of consent has had a history of subjective interpretation. However, more recent jurisprudence is demonstrating an emerging trend that expands the defence’s potential requirements. The 2022 Supreme Court of Canada decision in R v AE  is a prime example of the Canadian legal system’s move toward increasing the necessary conditions an accused must meet before successfully implementing this defence. The significance of the AE case highlights the ever-prevalent issue of what indicates consent; this is an area which has plagued judicial undertaking. How is this still a debatable topic? Why are the laws not written clearly enough to eradicate ongoing errors in this area? Most importantly, what can be learned through R v AE?
Honest Mistaken Belief of Consent
In the 2011 case of R v A (J)the Supreme Court re-examined the definition of consent in relation to aggravated sexual assault. The case itself explored the relationship between two adults who had engaged in sexual activity in the past. However, one night while having intercourse, the complainant, JA, was choked to the point of unconsciousness and woke up to sexual activity still being undertaken by her partner, KD. Months later, JA reported to police that though she had originally consented to the choking, she had not consented to the subsequent intercourse.
While initially examining the limitations placed on the defence of consent found in Section 273.2 of the Criminal Code, Chief Justice McLachlin noted that the section must be read in a harmonious way to remain in line with statutory interpretation, explaining that “Applying this approach, we see that Parliament viewed consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter.” The major factor required is being in a conscious state. The moment a party becomes unconscious, they are no longer able to give consent. Therefore, any activity moving forward becomes assault. Consent was decided by the Supreme Court as a live decision, writing:
It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.
There is no implied consent nor advance consent; consent must exist temporally during the undertaking of sexual activity and it does not reach beyond when granted.
The 2019 Supreme Court case of R v Bartonwas another step forward for consent requirements. In this case, the accused was charged with the first-degree murder of a sex worker. During the investigation, the accused claimed he had received consent from the victim both on the night of the murder and the previous evening which they had spent together. Though he admitted to causing her death, he maintained his innocence in that they had engaged in a consensual sexual activity that had gone wrong.
Upon analysis, the SCC encouraged a change to the name of the consent defense. The majority suggested changing “honest but mistaken belief in consent” to “honest but mistaken belief in communicated consent.” The significance of this was so “...[a]n accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law.” This was a progressive step in underscoring current loopholes, and the SCC outlined reasonable requirements an accused would need to meet, such as proving an air of reality within their defense. There must be evidence that the accused attempted to obtain communicated consent and honestly believed they had achieved it prior to the sexual activity. Therefore, the paradigm put forward in Barton is a live communication element in obtaining consent, which is reasonably believable to a judge and jury. It is a necessity for communicated consent to be given by a conscious person prior to every instance of sexual activity. However, if the SCC reinforced consent obligations in the common law with this decision, how was it then re-examined in R v AE?
R v AE
The case of R v AE began on December 28, 2016, when a 17-year-old complainant, with a history of anxiety and depression, went to the residence of the respondent to hang out. During the evening, she was sexually assaulted by three teens. The complainant told police that she had not consented to the filmed sexual activity. The respondents were charged with one count of sexual assault and one count of sexual assault with a weapon. At trial, the judge acquitted both sexual assault charges and only convicted the respondent, AE, of sexual assault with a weapon. The trial judge did not believe the complainant based on her inconsistent testimonies, and, after reviewing the evidence, determined she had consented to the activities that took place during the attack.
During the Court of Appeal trial, Justice Martin summarized the findings of R v Ewanchuk and R v JA in explaining the required legal components. The actus reus of consent is focused on a complainant’s subjective state of mind during the touching. The period of time relevant for consent is when the touching is occurring. The mens rea of the offence is found in the accused knowing that the complainant was not consenting to the sexual touching or the accused being wilfully blind to the absence of consent. Upon examining the evidence, the Court of Appeal focused on the complainant’s behaviour in the video and found that it "[did] not support the contention the complainant was consenting to all of the abuse directed at her. With respect, the trial judge erred in assuming that, having consented to rough sex at the outset as he found she did, the complainant consented to all of the violence actually inflicted upon her....” The judges rejected broad advance consent as conflicting with the Criminal Code. As such, it did not matter that the encounter had started consensually.
This decision was concurred by Justice Brian O’Ferrall, who also noted:
Where the law of consent seems to be now is that the absence of consent need not be proved by the Crown in sexual assault cases if the accused had a subjective intent to cause bodily harm to the complainant and did in fact cause bodily harm. The absence of consent need not be proved because no consent can be obtained.
The judge should not have been searching for consent indicators to the violent assault depicted in the recording. Instead, the focal point should have been on the accused and the terrible acts they were inflicting. The continued focus on what the victim did, did not do, or what they did wrong is exactly the problem our society and the judiciary have perpetuated.
In 2022, the SCC submitted their decision, agreeing that “The trial judge failed to address the scope of the complainant’s consent to sexual activity and failed to consider whether her consent was withdrawn.” Justice Moldaver, writing for the majority, based this on the video recording. The complainant was asked by the accused if she was enjoying what was happening and could be heard saying, “no,” on multiple occasions. The video removed the required air of reality for any defense of an honest but mistaken belief in consent. It was clear that there was a point at which consent had been rescinded, and the activity continued despite this.
Impacts Moving Forward
The substantial impact of the cases of AE and Barton show the SCC working to utilize the common law to implement change and follow a shift in our culture’s understanding of consent. The current holes left in the Criminal Code have massive impacts on victims of sexual assault. The work that is being done in writing these decisions helps to protect complainants from faulty legislation and antiquated attitudes of judges. The hope is that this message provokes Parliament to act and fix the very real problems found within the present-day provisions. Communicated consent, temporally connected to each sexual act, can be rescinded at any time. R v AE is another step towards a legal system where this defence ceases to be raised by those who do not understand consent and where the defence ceases to be accepted by judges whose views belong in the past.
 Criminal Code, RSC 1985, c C-46, s 273.1.  Ibid at s 273.2.  Ibid.  R v AE,  SCC 4 [AE SCC].  R v A (J),  SCC 28 [AJ].  Criminal Code, supra note 1 at s 273(1).  AJ, supra note 5 at 11 paras 5-11.  Criminal Code, supra note 1 at s 273.2.  AJ, supra note 5 at 20 para 33.  Ibid at 34 para 66.  R v Barton,  SCC 33 [Barton].  Ibid at 33 para 4.  Ibid at 68 para 92.  Ibid at 76 para 107.  Ibid at 83 para 121.  AE SCC, supra note 4 at 1 para 1.  Ibid at para 2.  Ibid at 2 para 14.  R v Ewanchuk,  1 SCR 330.  R v JA,  2 SCR 440.  Ewanchuk, supra note 19 at para 48.  JA, supra note 20 at para 46.  R v AE,  ABCA 172 at 6 para 26 [AE ABCA].  Ibid at 7 para 35.  Ibid at 26 para 114.  Ibid at 25 para 109.  AE SCC, supra note 4 at 4 para 1.  AE ABCA, supra note 23 at 8 para 37.