Honest But Mistaken Belief in Communicated Consent

Understanding the concept of “honest but mistaken belief in communicated consent” is an important principle in the context of Canadian law, particularly with regard to sexual assault cases. The Canadian Criminal Code and relevant case law acknowledges that there may be situations where you genuinely believe that another person has given consent, but in reality, they did not. The law takes into account that mistakes can happen, but it sets strict standards for what qualifies as a ‘mistake’ and differentiates it from willful blindness or recklessness regarding consent.

In Canada, the Supreme Court has outlined the need for an accused to take reasonable steps to ascertain consent.

It is not enough for an individual to simply assume that consent has been given; you must actively ensure that the other party is consenting to sexual activity at all times and understands the nature of the interaction. The consideration of this belief involves assessing the evidence to determine whether your belief was reasonable at the time of the incident, given all the circumstances.

Consent is defined as the mutual agreement between parties in order to engage in sexual activity. It is the responsibility of all individuals involved to ensure that the other party has communicated consent clearly. Consent must be given freely, and any person must have the capacity to consent, which involves an operational mind and voluntary agreement without coercion or pressure.

Positive evidence of consent can mean verbal or non-verbal cues that indicate a willing participation in sexual acts. However, the safer course of action for a person engaging in sex is to both receive a verbal “yes” from the other party to the sexual acts in question, coupled with clear physical signs that the other party is agreeing to engage in sexual activity. For example, particularly in a newer relationship, it is a dangerous practice to merely rely on non-verbal physical cues such as enthusiastic participation, without also receiving verbal agreement (i.e., where the other person has clearly stated: ”Yes”). Remember, consent can be withdrawn at any time, and past consent does not imply future consent.

The legal principle of “honest but mistaken belief in communicated consent” (which has the same meaning as the former terminology “honest but mistaken belief in consent”)  revolves around the assertion that you, as an individual, held a genuine yet incorrect belief that another party consented to the sexual activity you engaged in.

When you claim a mistaken belief in consent, you assert that you genuinely believed the other party gave consent.

It’s important to distinguish that mistaken belief is not simply ignorance or misunderstanding but rather a firmly held conviction or belief  that aligns with objective reality:  

• Subjective belief: Your personal conviction must be that consent was granted, even if it was mistaken.
• Reasonableness: For the courts to consider your belief as honest and mistaken, it must be judged on what a reasonable person in the same circumstances would have believed.

Mistake of fact is a related concept where you misconstrue a fact that directly relates to the situation, affecting your understanding of consent.

• Honest belief: The belief in the fact and subsequent consent must have been honestly held, regardless of the mistake.
• Objective evaluation: Courts will examine the circumstances surrounding the mistake, focusing on the reasonableness of your subjective belief.

To invoke the defence of an honest but mistaken belief, you must demonstrate that there was a reasonable basis for your belief that the other party consented to the sexual act.

This standard is not only subjective – focusing on your personal belief – but also objective, requiring that any reasonable person in your situation would have also believed that consent was given. In order to raise a mistaken belief in consent defence, there must be an air of reality to the defence. An air of reality is established where a properly instructed judge or jury, acting reasonably, could acquit the accused. In other words, there must be some support for the defence in the whole of the evidence or in the circumstances of the case.

The air of reality may be found in the victim’s evidence, the defendant’s evidence, or some reasonable combination of both their evidence. This type of defence can arise where the evidence of the victim and defendant is similar, but may be subject to different interpretations. This occurs when some of the evidence of the victim and some of the evidence of the accused taken together are believed. If it is realistically possible to splice some of the victim’s evidence and some of the accused’s evidence together and find a reasonably coherent set of facts that are supported by the evidence, then this defence is available. On the other hand, where the accused’s evidence and the victim’s evidence are diametrically opposed and cannot be reconciled, then this defence does not apply. Only the defence of consent would apply to diametrically opposed versions of events.

The defence cannot be used if your belief stemmed from self-induced intoxication, recklessness, wilful blindness, or if you failed to take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Obviously, if the victim is extremely drunk and not capable of giving consent due to essentially being “out of it” or incapacitated, the defence of consent or honest but mistaken consent does not apply and the accused would be convicted. However, the Supreme Court of Canada has found that even a “drunken consent” is still valid if the complainant was still capable of providing consent in his or her drunken state. It is difficult to determine when the line is crossed where a person is so drunk or intoxicated that they are simply incapable of consenting to sexual activity. The degree of a complainant’s intoxication and whether this left him or her incapacitated and incapable of consenting is something that judges and juries struggle with in many sexual assault trials.

In sexual assault cases, where consent or the lack of consent is highlighted, the defence of honest but mistaken belief is intensely scrutinized.

It is not applicable in situations where the complainant was unconscious, asleep, too drunk to provide a valid consent, or your belief is based on ambiguity, threats, or self-induced intoxication.

To assess if your belief was indeed honest and mistaken, the court focuses on your subjective state at the time of the incident.

Evidence plays a central role here: testimony, actions, and context all bear weight. For example:

• Testimony from the Accused: Your explanation of the situation and belief in consent must be credible.
• Testimony from the Complainant: The complainant’s evidence or parts of the complainant’s evidence may create an air of reality for an honest and mistaken belief in consent defence. 
• Contextual Evidence: Text messages or witness accounts can illustrate the environment of the alleged consent.

The trial judge will dissect the honest but mistaken belief defence while ensuring a fair trial.

Their role involves:

• Directing themselves (in a judge alone trial) or a jury (in a jury trial): The trial judge instructs themselves or a jury on how to perceive the evidence related to your belief in consent.
• Reasons for Judgment: In a judge alone trial, a judge must articulate clear reasons why they accept or reject your belief as honest and mistaken. In a jury trial, a jury simply finds the accused guilty or not guilty and does not have to give reasons for their decision. The accused is presumed to be innocent in Canadian courtrooms. The   burden of proof is always on the crown to prove their case beyond a reasonable doubt.In other words, the crown must disprove the honest but mistaken belief in consent defence  beyond a reasonable doubt once it has been made a live issue at trial.

In the case R. v. Barton, it’s clear that the defence of honest but mistaken belief in communicated consent can be complicated and rarely arises in sexual assault trials..  Here, after an initial acquittal was overturned, the Court of Appeal ordered a new trial. This decision was important in clarifying the threshold for establishing this defence.

Essential points from this case include:

• Mistaken belief must be reasonable under the circumstances.
• The accused’s actions leading up to the event are considered.
• Intoxication of the accused does not automatically validate their belief.  Self-induced intoxication can lead to clouded judgement  and will  often lead to a judge rejecting their belief which arose from being intoxicated.

The Supreme Court of Canada  detailed that for a belief in consent to be considered honest and mistaken, several criteria must be met:

1. Honesty: The accused must have genuinely believed the complainant consented.
2. Reasonableness: The belief must be justifiable in the given context.
3. Proactive steps: The accused should have taken active steps to ensure consent.

In more recent cases, courts have applied the precedent set by R. v. Barton to determine the outcome.

If a trial involves aspects of honest but mistaken belief in consent, your legal counsel will likely refer to this case and the many decisions which have followed it.  They will closely analyze your version of events and the complainant’s evidence to formulate an appropriate defence strategy.