Diana Davison, Joseph Neuberger, Justice - June 15, 2025

Honest But Mistaken Belief in Consent

In sexual assault cases, a defendant's claim of "honest but mistaken belief" of consent is only valid if they took reasonable steps to confirm consent, and this requirement can have implications for how burden of proof is understood and applied

Questions to inspire discussion

Legal Framework

🔍 Q: What is the "honest but mistaken belief in communicated consent" defense?
A: It's a structured defense codified in Section 273.2(b) of the Criminal Code, requiring the defendant to prove they reasonably believed the complainant communicated consent through words or conduct and took reasonable steps to confirm it.

⚖️ Q: How does the burden of proof shift in this defense?
A: The burden shifts to the defendant, who must provide real evidence of what informed their belief in consent and demonstrate the reasonable steps taken to ascertain it.

Reasonable Steps

🚶 Q: What constitutes "reasonable steps" in confirming consent?
A: Steps that are both objectively reasonable and considering the circumstances known to the defendant at the time, aimed at dispelling ambiguity in the communication of consent.

🔎 Q: How does the "reasonable steps" requirement vary in different situations?
A: It's more complex with strangers due to limited knowledge of communication styles, while it can be more plausible in ongoing relationships where parties have developed a "language of communication".

Contextual Factors

👥 Q: How does prior history between parties affect this defense?
A: A prior history or ongoing relationship can make the defense more plausible as parties may have established patterns of communicating consent.

📜 Q: Is prior sexual history relevant in these cases?
A: Prior sexual history can be relevant, especially in ongoing relationships, as it provides context for consent communication.

Practical Application

⚠️ Q: How common is this defense in sexual assault cases?
A: It's considered a rarity, particularly in cases with clear evidence of lack of consent.

🧩 Q: Why is this defense described as "nuanced"?
A: It requires careful consideration of each case's circumstances, including the defendant's perception of signals and the reasonableness of steps taken to confirm consent.

Challenges and Considerations

🤔 Q: What makes establishing "reasonable steps" difficult?
A: The concept can be "muddied" and challenging to prove, especially in cases involving strangers with limited shared communication history.

🔬 Q: How is the "test for reasonable steps" applied?
A: It often requires a case-by-case analysis of specific facts and circumstances, making it a complicated aspect of the defense.

Key Insights

Legal Framework and Requirements

🔍 The defense of honest but mistaken belief in communicated consent requires defendants to prove they reasonably believed consent was communicated and took "reasonable steps" to confirm it.

⚖️ Section 273.2(b) of the Criminal Code codifies this defense, emphasizing that consent cannot be based on passivity or ambiguous conduct.

🧠 The defense must have an "air of reality", with evidence that a reasonable trier of fact could find the accused took steps to ascertain consent.

Nuances and Challenges

🤔 "Reasonable steps" are both objectively reasonable and subjective, considering circumstances known to the defendant at the time.

🗣️ In cases with prior history or ongoing relationships, the defense can be more plausible due to established communication patterns.

🚫 The defense is an alternate argument to consent, applicable even if the complainant didn't consent, provided reasonable steps were taken.

Evidence and Context

👁️ Active steps to confirm consent, like eye contact or verbal confirmation, are generally required to meet the "reasonable steps" threshold.

📜 Prior sexual history between parties can be relevant in providing context for communication and establishing reasonable belief.

🔬 Defendants must provide evidence of taking reasonable steps to ascertain consent or age, as per 1992 Criminal Code amendments.

Practical Implications

⚖️ This defense potentially creates a shift in burden of proof for the accused in sexual assault cases.

🔄 The concept of "reasonable steps" applies differently in cases involving strangers versus those with prior history.

🧩 The defense is complex and nuanced, requiring careful consideration of each case's unique circumstances and signals.

#Justice

XMentions: @HabitatsDigital @d2davison @NotOnRecord @NewbergerLaw

Clips

00:00 💡 In sexual assault cases, a defendant's "honest but mistaken belief" defense requires taking reasonable steps to confirm consent, which depends on the circumstances.
- Taking reasonable steps to verify the truth of something is a good question to consider.
- The defense of honest but mistaken belief and communicated consent in sexual assault cases will be discussed, referencing a previously argued case with a unique situation involving mixed signals.
- To establish a defense of honest but mistaken belief in communicated consent, a defendant must have reasonably believed the complainant communicated consent and taken objectively reasonable steps to confirm it, considering the circumstances known to them at the time.
- The requirement clarifies that consent must be explicitly communicated, and non-verbal actions, such as grabbing someone's crotch, do not constitute consent for sexual activity.
- In cases of sexual assault, the accused must take "reasonable steps" to ascertain consent, which depends on the circumstances, and demonstrate greater care if the activities are more invasive or with a stranger.
05:30 🤔 Canada's 1992 criminal code amendment requires accused in sexual assault cases to prove they took "reasonable steps" to ascertain consent, potentially shifting burden of proof.
- The defense of reasonable doubt can be negated if it's proven that the accused failed to take reasonable steps, as outlined in a 2022 Ontario Court of Justice decision reported on Canley.
- The amendment to Canada's criminal code in 1992, requiring the accused to take "reasonable steps" in sexual assault cases, raises concerns about shifting the burden of proof and how to define "reasonable steps".
- If a defendant claims a mistaken belief about consent, they must prove they took reasonable steps to ascertain the relevant fact, shifting the burden of proof to them.
08:49 💡 The speaker argues that in cases of sexual assault, a defendant's claim of honest but mistaken belief of consent must be based on reasonable steps taken to ensure consent was given.
- The speaker argues that in a situation where a person is clearly not consenting, such as when physical actions indicate refusal, it is fair to conclude that there was no communicated consent.
- When a defense to a sexual assault charge is based on honest but mistaken belief of consent, the burden shifts to the accused to show they took reasonable steps.
- The argument centered on whether an honest mistaken belief of consent was reasonable, requiring careful consideration of evidence and circumstances in each case.
- Reasonable steps are needed when circumstances don't allow testing the waters.
- Women often give men subtle signals to make the first step, as they tend to avoid being the aggressor and risking rejection.
13:37 💡 The requirement for individuals to prove "reasonable steps" in establishing lack of consent and mistaken belief can unfairly burden the accused and muddy the waters in sexual assault cases.
- The requirement for individuals to testify and explain their perception of events when refusing to assault shifts an unfair burden on the accused.
- The requirement of "reasonable steps" in establishing lack of consent muddies the waters and may be unnecessary given the crown's burden to prove lack of consent beyond a reasonable doubt.
- Establishing an error of reality requires evidence to support a reasonable belief, and simply presenting an alternative version of events does not negate the error.
- You can argue mistaken belief and consent even with opposing versions of events, but reasonable steps and reality must be considered.
- The threshold for showing reasonableness in a pre-trial phase is low, but discussing "reasonable steps" can become complicated.
- The accused must provide actual evidence of actions or words that led to their honest, mistaken belief of consent, which can be influenced by prior interactions and relationships.
19:18 💬 Two people with a 2-year history of friendship and physical contact engage in intimate behavior, suggesting romantic interest despite being involved with others.
- They spent multiple hours together in various locations, including a bar, a back alley, and an apartment, drinking and playing games.
- The situation involved two people who had a two-year professional and friendly relationship with a history of physical contact, including intimate touching, before a specific incident occurred.
- The couple exhibited physical closeness and intimate behavior, including holding hands and affectionate touching, suggesting romantic interest in each other despite both being involved with others.
21:41 💡 The speaker finds Joseph's cross-examination convincing, highlighting the importance of actively checking for consent and criticizing the defense's "honest but mistaken belief" argument.
- The speaker found the cross-examination of Joseph convincing because the facts logically led to one another, making it clear there was no consent.
- The defense of "honest but mistaken belief" argues that a person shouldn't be jailed for making a genuine mistake about consent, rather than intentionally causing harm.
- The concept of "reasonable steps" in determining consent means actively checking in with the other person, not just passively interpreting their signals, to establish a genuine belief of consent.
- The Supreme Court has not outlined specific steps to be taken, making it unreasonable to create a list of expected steps.
25:31 💡 In Canadian sexual assault law, "honest mistake" in belief and consent is a defense, but the crown must still prove the accused intended or was reckless to a lack of consent.
- In cases of alleged sexual assault, an "honest mistake" in belief and consent refers to actions that may be misinterpreted, but were genuinely believed to have a different meaning by the accused.
- To convict someone of sexual assault, the crown must prove that the touch was of a sexual nature, without consent, and that the person intended to touch or was reckless/willfully blind to a lack of consent.
- The article "Mirroring Men's Rea: The Two Pathways to Conviction Argument and Canadian Sexual Assault Law" by Mano provides a thought-provoking perspective on interpreting evidence in Canadian sexual assault law, but is unlikely to lead to legislative changes.
- People may develop unique, non-verbal signals to communicate their intentions, which can be specific to their individual experiences and not commonly understood.
- In cases involving a couple's history, their developed "language" of interaction and past sexual activity is highly relevant to defenses of honest mistaken belief and consent.
30:44 👋 The creators express gratitude to their viewers, encourage engagement, and sign off, promising to revisit an important issue in a future discussion.

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Duration: 0:31:31

WatchUrl: https://www.youtube.com/watch?v=H9kORtJjLTM

Publication Date:2025-06-15T10:32:12Z