The Defence of Honest but Mistaken Belief in Consent: Context is Everything


 While clearly an accused cannot argue that he misinterpreted “no” as meaning “yes” (R. v. J.A. (2011), 2011 SCC 28 (CanLII), 271 C.C.C. (3d) 1 (S.C.C.), at para. 24; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 51), where the circumstances called for the accused to take reasonable steps to ascertain the complainant’s consent, and he failed to do so, he is statutorily barred from reliance on the mistake defence.

 R. v. Daigle, [1989] 1 S.C.R. 1220, at para. 3; R. v. Potvin, 2012 ONCA 113 (CanLII), at para. 4.

In R. v. Potvin, the complainant repeatedly said “no” to sex and then appeared to say “yes” by uttering the word “okay”. Viewed in the context of all that preceded it, the complainant’s use of the word “okay” was ambiguous.  In the absence of further inquiry by the accused, a single “okay” after five refusals over a sustained period of time was simply insufficient to ground a reasonable but mistaken belief in consent. In the circumstances, the accused was obliged to take steps to determine whether there was a reasonable basis for belief in the complainant’s consent.

R. v. Potvin, 2012 ONCA 113 (CanLII).

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