Background
The appellant, C.L., was convicted of sexual assault following a jury trial before Justice Susanne Boucher of the Superior Court of Justice. The only witnesses were the complainant and the appellant, and the sole issue was consent. The parties had been friends for five years. In July 2022, they consumed gamma-hydroxybutyrate (“G”) together, dined at a restaurant, and later engaged in sexual activity at the complainant’s apartment. The complainant testified that she did not consent to the sexual activity, describing attempts to stop the appellant’s advances and stating she “gave up” during the encounter. The appellant testified that the complainant initiated the sexual contact, explicitly consented, and provided specific directions during the activity.
At trial, the judge instructed the jury on the actus reus and mens rea of sexual assault. Regarding consent, the trial judge told the jury that “there’s still no consent in law if she agreed to… the sexual touching unless she communicated her agreement to the sexual act to [the appellant] by words or conduct.” This instruction was repeated twice. The jury found the appellant guilty, and he was sentenced to three years in custody. On appeal, the appellant challenged the conviction on two grounds: first, that the trial judge erred in law by instructing the jury that consent must be communicated by words or conduct; and second, that the Crown made improper closing remarks by telling the jury the appellant had “every reason” to lie, thereby inviting the jury to infer guilt from a motive to lie.
The Court’s Holding
The Court of Appeal for Ontario allowed the appeal and ordered a new trial. Writing for a unanimous panel (Monahan and Osborne JJ.A. concurring), Thorburn J.A. held that the trial judge’s instruction on consent was erroneous in law. The parties agreed that the instruction was wrong: there is no legal requirement that consent be communicated by words or conduct for the actus reus of sexual assault. Citing R. v. Ewanchuk, 1999 SCC 711, and R. v. J.A., 2011 SCC 28, the Court explained that consent at the actus reus stage concerns the complainant’s subjective state of mind—whether she in her mind wanted the sexual touching to take place. Communication of consent is relevant to the mens rea stage, specifically to the defence of honest but mistaken belief in consent, but it is not a precondition to finding subjective consent.
The Court found that the erroneous instruction created a serious risk of wrongful conviction. Because the jury was told that consent could not exist unless communicated, they may have convicted the appellant even if they believed the complainant subjectively consented or had a reasonable doubt about her lack of consent, simply because they found no communication of that consent. The Court rejected the Crown’s argument that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code should apply to uphold the conviction. Given the real possibility that the verdict would have been different had the jury been properly instructed, the error was not harmless.
Regarding the second issue, the Court held that the Crown’s closing remarks were improper. By telling the jury that the appellant had “every reason to lie,” the Crown invited the jury to infer guilt from the appellant’s self-interest in avoiding conviction, contrary to the presumption of innocence. Although defence counsel raised a concern, the corrective instruction provided by the trial judge addressed only the complainant’s motive to lie, not the appellant’s. The Court held that the trial judge should have specifically instructed the jury that they must not presume an accused will lie out of self-interest to avoid conviction. This failure, combined with the erroneous consent instruction, warranted a new trial.
Key Takeaways
- Consent for the actus reus of sexual assault is subjective and does not require communication by words or conduct; communication is relevant only to the mens rea stage for the defence of honest but mistaken belief in consent.
- An erroneous jury instruction that adds a legal precondition to consent creates a risk of wrongful conviction and cannot be saved by the curative proviso where there is a reasonable possibility the verdict would have been different.
- Crown counsel may not invite a jury to infer guilt from an accused’s motive to lie based on self-interest in avoiding conviction; such comments offend the presumption of innocence.
- Trial judges must provide specific corrective instructions when Crown counsel makes improper closing remarks about an accused’s motive to lie, particularly in credibility contests between the accused and complainant.
Why It Matters
This decision reinforces the critical distinction between the actus reus and mens rea of sexual assault regarding consent. It clarifies that while communication of consent is central to the defence of honest but mistaken belief, it is not a legal requirement for establishing the complainant’s subjective consent. Trial judges must ensure juries understand that a complainant’s subjective consent, even if uncommunicated, can raise a reasonable doubt and necessitate an acquittal.
The ruling also underscores the limits of permissible Crown advocacy. Prosecutors must avoid suggesting that an accused’s testimony is inherently less credible because they have a motive to lie to avoid conviction. In trials hinging on credibility between two witnesses, such suggestions can improperly shift the burden and undermine the presumption of innocence, requiring appellate intervention and new trials.