R. v. M.C., 2022 ONCJ 282

ONTARIO COURT OF JUSTICE CITATION: R. v. M.C., 2022 ONCJ 282 DATE: June 16, 2022 COURT FILE No.: 20-Y3810077 BETWEEN: HER MAJESTY THE QUEEN — AND — M.C. – a young person within the meaning of the Youth Criminal Justice Act PUBLICATION BAN s. 486.4(1) Before Justice Angela L. McLeod Trial February 2, 2022 Submissions April 6, 2022 MS. DICLEMENTE.............................................................................. counsel for the Crown MS. SIDDIQUI AND MS.

PACIOCCO.......................................... counsel for the accused McLeod J.: OVERVIEW [ 1 ] It is alleged that M.C. sexually assaulted K.A. on the 19 th day of February 2020. [ 2 ] The Crown proceeded by Indictment. [ 3 ] The defence admitted date, time, jurisdiction, identity, the biology, toxicology and SAEK reports, as well as continuity and voluntariness. [ 4 ] Both parties gave statements to the police. The Crown filed transcripts of those statements as a part of their case. [ 5 ] There is no issue that the young persons had sexual contact.

The issue for the court to determine is one of consent or mistaken belief in consent.

SUMMARY OF THE FACTS [ 6 ] At the time of the sexual contact K.A. was 15 years old. M.C. was 17 years old. [ 7 ] The evening before the sexual contact the parties met for the first time on Snap Chat. The digital conversation predominantly revolved around M.C. wanting to pick up K.A. K.A. wanted to talk more before meeting. She made up an excuse that she was grounded and thus could not meet right away. She made it clear that she wanted a ‘friend encounter’. Nonetheless, M.C. asked if he could kiss her when they met. She said yes. The parties strategized about when and where they would meet.

[ 8 ] At school the next day, K.A. discussed her connection with M.C. with her friends. One of them advised that she too had been messaged by M.C. K.A. was starting to regret her decision to meet up with M.C. [ 9 ] K.A. wanted her friend to come along for the meeting. When she suggested this to M.C., he made her feel guilty and said words to the effect ‘now you are all square and not into it’. K.A. knew that M.C. had also been communicating with her friend. She sent him screen shots of her friend’s social media account confirming same.

He called himself a ‘ho’. [ 10 ] Ultimately, M.C. drove to K.A.’s high school and picked her up. She wanted to smoke marihuana and she “knew I couldn’t do that in his vehicle”, so she suggested they go to her house. She smoked a joint in the garage. K.A. testified that she was not affected because she was a ‘regular smoker’. M.C. did not participate. [ 11 ] K.A. was nervous and uncomfortable. She was ‘over thinking’. Two of her friends ‘were putting stuff in [her] head’.

She looked past her feelings and discussed her past relationships, including past sexual relationships with M.C. while in the garage. [ 12 ] The parties left the garage and went into the livingroom. Both sat on the couch. M.C. asked if he could kiss K.A. She giggled in response. The dog barked at the back door and she got up to let the dog in. When she returned, she told M.C. that she needed to get back to school. She sat down. M.C. was standing. He asked again if he could kiss her. She didn’t respond; he leaned in and kissed her. M.C. then sat on the couch and pulled K.A. onto his lap.

She did not assist in this process. [ 13 ] The parties kissed. M.C. put ‘his fingers in places’. He stood up with K.A. still in his lap. He pushed her down, turned her around, and put his hand in the middle of her back. K.A. kept standing up. Somehow her pants came down. She testified that she kept saying “my pants are going up and they are staying up”. M.C. said, “just trust me”. [ 14 ] In her statement to the police K.A. never mentioned telling M.C. that her pants were going up and staying up. [ 15 ] K.A. testified that M.C. continued on and that she kept saying no, over and over.

M.C. tried to turn her around to face him. M.C.’s penis was removed from his pants. He was rubbing it over K.A. M.C. said “trust me, look how far we have gotten, can we start from the beginning?”. [ 16 ] K.A. then masturbated M.C. while both were standing facing one another. She testified that M.C. did not ask her to do that, and she did not seek his consent in advance. She took this step on her own accord. [ 17 ] K.A. was unclear in her recollection, however at some point she claimed that M.C. turned her around, pulled down her pants and quickly thrusted his penis inside her vagina.

She pulled up her pants and said, ‘they are staying up’. This action was very quick, lasting 2-3 seconds accordingly to K.A. In cross examination, K.A. agreed that once bent over she said, “I don’t want to fuck, don’t cum in me or on me”. In cross examination, K.A. first agreed that she had said this, then later disagreed and stated that she did not remember saying that. [ 18 ] M.C. testified that the sexual encounter progressed from kissing, to sitting on his lap, touching of her breast, hands down pants, finger in anus, rubbing of buttocks, digital vaginal penetration, and masturbation of him.

He testified that he asked to kiss her, asked her to sit on his lap and asked to grind on her buttocks. Thereafter, each next escalation of activity, he did not ask for permission, but noted that she was ‘fine’ and ‘ok’. M.C. believed that K.A. was giving consent for sexual activity when she put her hands down his pants and was masturbating him, he testified, “if she didn’t want anything sexual why would she do that?”. [ 19 ] M.C. testified that when he turned her around, K.A. said “I don’t want to do anything sexual”. He said ok. As an alternative, he was grinding on her buttocks.

She pulled up her pants as did he. He walked into the kitchen. The parties resumed sexual contact in the livingroom, and he pulled down her pants and asked if he could grind on her. She then said, “don’t cum on me or in me”. He then put the tip of his penis into her vagina, and she said, “I don’t want to”. He removed his penis and resumed grinding. She then said it was time to go and the parties left the residence. [ 20 ] M.C. testified that “when she said do not cum in or on me, I thought that was her giving me permission, if you don’t want to have sex why say don’t cum in me, if we weren’t having sex?”.

He acknowledged in cross-examination that he did not clarify what K.A. wanted when she had said initially that she did not have to have sex with him. [ 21 ] K.A. testified that she only consented to kissing. When they were kissing M.C. held onto her neck with one hand, engaging in what she called ‘sexual choking’. She was not surprised and was unbothered by this action. [ 22 ] K.A. asked M.C. to take her to Tim Horton’s before returning to school. They talked during ride, mostly about what K.A. had to too once back at school.

They did not speak about the sexual contact. [ 23 ] K.A.’s cell phone was receiving a lot of calls. M.C. asked if she had girls waiting to beat him up. [ 24 ] Back at school, K.A. told her friends what had happened. Among other feelings, she was embarrassed about having had a sexual encounter with M.C. who had been messaging other girls. She was confused about what had happened.

K.A. did not give her friends a ‘play by play’ of the sexual encounter and could not remember if she told them that she had initiated the masturbation of M.C. [ 25 ] She testified that the word ‘rape’ never came up until her friend used it. She said, “someone in authority had to tell me that you just went through this”. Her friend told her that she had been raped. Her friend immediately took her to see a guidance counsellor.

The friend and K.A. both told the counsellor what had happened. [ 26 ] In re-examination, K.A. testified that her friends sort of took over the conversation about what had happened, “talking like they were there” and noted that “they didn’t do much of asking me”. She said, “I don’t know that I knew what had happened, a 15 year old brain, I needed, I couldn’t come to terms with what had happened. I spoke with someone and they told me how it was”.

[27] In cross examination, when asked if M.C. only proceeded to escalate things in the sexual contact when K.A. consented, sheresponded, “That would be hard when I wasn’t consenting … Maybe he got the impression that I was ok, but I told him the night beforethat I didn’t want sexual intercourse”. When it was suggested that M.C. proceeded once she had given consent and stopped whenconsent was stopped, K.A. replied, “right”. In re-examination, she said, “there was no consent to withdraw, I never gave consent, oncehe realized I was not into it, he stopped.

I never withdrew consent ‘cause it was not given”. [28] K.A. acknowledged that she was hesitant and conflicted, worried about M.C. being a ‘player’ and worried about being judged byher friends. [29] Someone contacted M.C. and told him that they wanted him to ‘get jumped’ as a consequence for what had happened with K.A.

They used the word ‘rape’ and M.C. said, “that is a big word to throw around”. [30] The day after the incident M.C. sent K.A a text message that read: I’m so sorry [K.A.] I literally am and I’m not saying that to hopefully get myself out of trouble but I genuinely mean that I’m so sorry Iwas so stupid I didn’t mean to make u feel so uncomfortable I really hope that we can talk about this if not that’s fine I deserveconsequence for my actions and I never should had done that but I do need u to know I’m really sorry POSITION OF THE PARTIES [31] The defence submits that, although hesitant, K.A. did consent to all of the sexual activity.

Alternatively, the defence of mistakenbelief in consent is raised. The defence submits that M.C. took reasonable steps to ascertain consent, asking to kiss, to put K.A. on hislap and to grind on her buttocks. The defence submits that K.A.’s testimony cannot be believed and is a result of ‘slut shaming’ whereinshe was made to regret her consent and sexual activity by her friends and as a result to save face she altered the narrative. [32] The Crown submits that K.A. was clear and unequivocal in her desires and did not consent to the sexual activity after the kissing.

The Crown argues that at best K.A. was silent in between the kissing and the penetration, but at the latter point was clear that she did notwant to engage in sexual intercourse. CASELAW – LEGAL COMPONENTS OF SEXUAL ASSAULT [33] In R. v. H.W. 2022 ONCA 15, the Ontario Court of Appeal summarizes the legal components of the offence of sexual assault: 36 In the case of a charge of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c.

C-46, the Crown must prove beyonda reasonable doubt that the accused committed the actus reus of the offence and had the necessary mens rea: Barton , at para. 87. 37 The Supreme Court of Canada has consistently formulated the mens rea of the offence as including the knowledge element — therequirement that the accused knew of, was wilfully blind to or was reckless about, the absence of the complainant's consent to the sexualactivity.

The accused must have intentionally touched the complainant "knowing of, or being reckless of or wilfully blind to, alack of consent on the part of the person touched": Barton , at para. 87; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24; andR. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 118. 38 The Crown's burden to prove the contents of the actus reus and the mens rea of sexual assault, including the knowledge element,were most recently described by Karakatsanis J. in R. v.

G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 25 as follows: The actus reus of sexual assault requires the Crown to establish three things: (

i) touching; (ii) of an objectively sexual nature; (iii) towhich the complainant did not consent ... At the mens rea stage, the Crown must show that (

i) the accused intentionally touched thecomplainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence ofconsent. [Citations omitted, emphasis added]. And (

c) Mens Rea and Consent 42 Central to both the actus reus and the mens rea for sexual assault is the issue of consent, "the foundational principle upon whichCanada's sexual assault laws are based": G.F. , at para. 1. 43 The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code, consent means "the voluntaryagreement of the complainant to engage in the sexual activity in question." It means the conscious agreement of the complainant to"every sexual act in a particular encounter": J.A. , at para. 31.

Section 273.1(2) of the Code contains a non-exhaustive list ofcircumstances in which consent is not obtained, while s. 273.1(3) "authorizes the courts to identify additional cases in which no consentis obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code": J.A. , at para. 29. 44 Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determiningwhether the actus reus was committed: Barton, at para. 89. 45 At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant'ssubjective internal state of mind towards the touching, at the time it occurred: R. v.

Ewanchuk, (SCC), [1999] 1S.C.R. 330, at para. 26; G.F. , at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching totake place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether theactus reus occurred: Barton , at para. 89. 46 The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed.In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that

the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus thenshifts to the accused's mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, thatlack of consent: Barton, at para. 87. (bold emphasis added) CASELAW – CONSENT AND MISTAKEN BELIEF IN CONSENT [34] The issue of consent, and it the purported forms, variations and manifestations was summarized in R. v. Barton, 2019 SCC 33: (

i) Implied Consent (Ewanchuk) 98 The "specious" defence of implied consent "rests on the assumption that unless a woman protests or resists, she should be 'deemed'to consent" (Ewanchuk, at para. 103, per McLachlin J. (as she then was)). Ewanchuk makes clear that this concept has no place inCanadian law. As Major J. stated for the majority, "a belief that silence, passivity or ambiguous conduct constitutes consent is amistake of law, and provides no defence" (para. 51, citing R. v. M. (M.L.), (SCC), [1994] 2 S.C.R. 3 (S.C.C.); see alsoJ.

Benedet, "Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution" (2014), 52Alta. L. Rev. 127). It is also a mistake of law to infer that "the complainant's consent was implied by the circumstances, or by therelationship between the accused and the complainant" (A. (J.), at para. 47).

In short, it is an error of law — not fact — to assumethat unless and until a woman says "no", she has implicitly given her consent to any and all sexual activity. (ii) Broad Advance Consent (J.A.) 99 "Broad advance consent" refers to the legally erroneous notion that the complainant agreed to future sexual activity of anundefined scope (see A. (J.), at paras. 44-48).

As summarized in A. (J.), the definition of "consent" under s. 273.1(1) "suggests that theconsent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consentis what Parliament had in mind" and "this Court has also interpreted this provision as requiring the complainant to consent to the activity'at the time it occur[s]'" (para. 34, citing Ewanchuk, at para. 26).

Thus, a belief that the complainant gave broad advance consent tosexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. (iii) Propensity to Consent (Seaboyer) 100 The law prohibits the inference that the complainant's prior sexual activities, by reason of their sexual nature, make it more likelythat she consented to the sexual activity in question (see Code, s. 276(1)(a); Seaboyer). This is the first of the "twin myths".

Accordingly,an accused's belief that the complainant's prior sexual activities, by reason of their sexual nature, made it more likely that she wasconsenting to the sexual activity in question is a mistake of law. [35] The SCC went on to summarize the law regarding mistaken belief in consent: (

d) The Reasonable Steps Requirement 101 Finally, the availability of the defence of honest but mistaken belief in communicated consent is not unlimited.

Section 273.2 ofthe Code, which formed part of the 1992 reforms to Canada's sexual assault laws, places important limits on the defence. That sectionreads: Where belief in consent 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 theactivity that forms the subject-matter of the charge, where (

a) the accused's belief arose from the accused's (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. 102 As is apparent, s. 273.2 applies in respect of various sexual assault offences: sexual assault under s. 271; sexual assault with aweapon, involving threats to a third party, or causing bodily harm under s. 272; and aggravated sexual assault under s. 273. 103 The jurisprudence on the reasonable steps requirement under s. 273.2(

b) remains underdeveloped, and academic commentatorshave highlighted the need for greater clarity (see e.g., E. A. Sheehy, "Judges and the Reasonable Steps Requirement: The Judicial Stanceon Perpetration Against Unconscious Women", in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women'sActivism (2012); L. Vandervort, "The Prejudicial Effects of 'Reasonable Steps' in Analysis of Mens Rea and Sexual Consent: TwoSolutions” (2018), 55 Alta. L. Rev. 933).

With that in mind, although the trial judge's limited instructions on reasonable steps were notraised by the Crown as a ground of appeal from Mr. Barton's acquittal, a few comments and observations are warranted to promotegreater clarity in the law and provide guidance for future cases — including the new trial on unlawful act manslaughter that, for reasons Iwill explain, is required in this case. (

i) The Reasonable Steps Requirement as a Precondition with Objective and Subjective Dimensions 104

Section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — noreasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively

reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time(see R. v. Cornejo (2003), (ON CA), 68 O.R. (3d) 117(Ont. C.A.), at para. 22, leave to appeal refused, [2004] 3S.C.R. vii (note)(S.C.C.), citing K. Roach, Criminal Law (2nd ed. 2000), at p. 157; see also Sheehy, at pp. 492-93). Notably, however, s.273.2(

b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code7 (see R. v. Darrach (1998), (ON CA), 38 O.R. (3d) 1(Ont.C.A.), at p. 24, aff'd 2000 SCC 46, [2000] 2 S.C.R. 443, (without comment on this point)). (ii) The Purpose of the Reasonable Steps Requirement 105 The purpose of the reasonable steps requirement has been expressed in different ways. The authors of Manning, Mewett &Sankoff: Criminal Law state that s. 273.2(

b) of the Code seeks "to protect the security of the person and equality of women whocomprise the huge majority of sexual assault victims by ensuring as much as possible that there is clarity on the part of both participantsto a sexual act" (M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1094 (footnote omitted)).Abella J.A. (as she then was) wrote in Cornejo that the reasonable steps requirement "replaces the assumptions traditionally — andinappropriately — associated with passivity and silence" (para. 21).

Professor Elizabeth Sheehy puts it this way: "Bill C-49's 'reasonablesteps' requirement was intended to criminalize sexual assaults committed by men who claim mistake without any effort to ascertain thewoman's consent or whose belief in consent relies on self- serving misogynist beliefs" (p. 492).

The common thread running througheach of these descriptions is this: the reasonable steps requirement rejects the outmoded idea that women can be taken to beconsenting unless they say "no". (iii) What Can and Cannot Constitute Reasonable Steps 106 Keeping in mind that "consent" is defined under s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engagein the sexual activity in question", what can constitute reasonable steps to ascertain consent?

In my view, the reasonable steps inquiryis highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps orobscure the words of the statute by supplementing or replacing them with different language. 107 That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape mythsor stereotypical assumptions about women and consent cannot constitute reasonable steps.

As such, an accused cannot point tohis reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a beliefthat any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would beperverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518).

Accordingly, an accused's attempt to"test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step.This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537). 108 It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will beelevated.

For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safetyof those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holdstrue where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications,misunderstandings, and mistakes.

At the end of the day, the reasonable steps inquiry is highly contextual, and what is requiredwill vary from case to case. 109 Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mindthat the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with thecommunication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodilyintegrity, sexual autonomy, and human dignity.

Finally, if the reasonable steps requirement is to have any meaningful impact, it must beapplied with care — mere lip service will not do. (iv) The Distinction Between Reasonable Steps and Reasonable Grounds 110 Finally, the concept of reasonable steps to ascertain consent under s. 273.2(

b) of the Code must be distinguished from the conceptof reasonable grounds to support an honest belief in consent under s. 265(4). The latter

section provides that in the context of an allegedassault, whether sexual or otherwise (see s. 265(2)), where the accused claims he believed the complainant consented to the conduct inquestion and the trial judge is "satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute adefence", the trial judge "shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of theaccused's belief, to consider the presence or absence of reasonable grounds for that belief".

This provision rests on the idea that as theaccused's asserted belief in consent becomes less reasonable, it becomes increasingly doubtful that the asserted belief was honestly held(see Pappajohn, at pp. 155-56, per Dickson J. (dissenting, but not on this point)). 111 In other words, where the accused is charged with some form of assault, the presence or absence of reasonable grounds is simplya factor to be considered in assessing the honesty of the accused's asserted belief in consent in accordance with s. 265(4).

By contrast,where the accused is charged with a sexual offence under ss. 271, 272, or 273, a failure to take reasonable steps is fatal to the defence ofhonest but mistaken belief in communicated consent by virtue of s. 273.2(b). 112 With this in mind, in the context of a charge under ss. 271, 272, or 273 where the accused asserts an honest but mistaken belief incommunicated consent, if either (1) there is no evidence upon which the trier of fact could find that the accused took reasonable steps toascertain consent or (2) the Crown proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain consent,then there would be no reason to consider the presence or absence of reasonable grounds to support an honest belief in consent under s.265(4), since the accused would be legally barred from raising the defence due to the operation of s. 273.2(b). 113 Finally, while the conceptual distinction between reasonable steps under s. 273.2(

b) and reasonable grounds under s. 265(4)remains valid, as a practical matter it is hard to conceive of a situation in which reasonable steps would not also constitute reasonablegrounds for the purpose of assessing the honesty of the accused's asserted belief.

(bold emphasis added) ANALYSIS AND FINDINGS [ 36 ] The expression of sex and sexuality is fraught with difficulties. People who engage in sexual activities come with history, culture, social pressures and ideologies. Those difficulties are exacerbated by poor communication which is often a result of society’s unwillingness to accept that human beings are naturally sexual creatures and a greater unwillingness to encourage self expression and frank discussion of the topic. [ 37 ] All of this is further complicated by inexperience, both with the activity and with the current sexual partner.

This case is founded in those difficulties. [ 38 ] I find that the actus reus has been made out beyond a reasonable doubt. I find that subjectively, K.A. did not consent to the activity as it was occurring, rather, she was young, inexperienced and did not know how to handle the situation. At some moments she was able to verbally express that she did not want to have sex, referring to sexual intercourse. At other moments she felt hesitant, uncomfortable and unable to express her lack of consent.

What is clear is that in her mind she did not want to have sex with M.C. [ 39 ] The issue to decide is whether the Crown has established the necessary mens rea component. The question is whether M.C. knew, was reckless or wilfully blind to K.A.’s lack of consent. [ 40 ] I find that M.C. relied upon K.A.’s silence, passivity and ambiguity to satisfy himself that she was consenting. I further find that he was ‘testing the waters’ as the sexual activity progressed.

He testified that although K.A. did not verbalize her continued consent, she was nonetheless ‘fine’ and ‘ok’ with the activity. [ 41 ] As a result, I find that M.C. was indeed reckless and or wilfully blind to whether or not K.A. was consenting to all of the activity, not just kissing, sitting on his lap or grinding. [ 42 ] The remaining issue is whether the defence of mistaken belief in consent is borne out in the evidence. As noted above,

section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent — no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. [ 43 ] Objectively, the steps that M.C. took were not reasonable. They were, in fact, non-existent. Testing the waters is not a reasonable step.

Self determining that K.A. was ‘fine’ or ‘ok’ simply because she did not resist, is not a reasonable step. [ 44 ] M.C.’s reliance on K.A.’s willingness to masturbate him as somehow reversing her earlier repeated verbal expression that she did not want to have sexual intercourse is not a reasonable step. [ 45 ] The parties were essentially strangers to one another. As the nature of the activity escalated, so should have the level of inquiry. When K.A. said “I don’t want to fuck, don’t cum in or on me”, M.C. should have clarified that ambiguity.

He did not. [ 46 ] As a result, the defence of mistaken belief in consent is unfounded. [ 47 ] In all of these circumstances the Crown has proven the requisite mens rea component beyond a reasonable doubt. [ 48 ] Both the actus reus and the mens rea having been established beyond a reasonable doubt, M.C. will be convicted of sexually assaulting K.A. Released: June 16, 2022. Signed: Justice Angela L. McLeod