R. v. Park (D.G.), (1995) 183 N.R. 81 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 22, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 183 N.R. 81 (SCC);39 CR (4th) 287;1995 CanLII 104 (SCC);[1995] 2 SCR 836;31 Alta LR (3d) 1;183 NR 81;[1995] ACS no 57;169 AR 241;[1995] SCJ No 57 (QL);99 CCC (3d) 1

R. v. Park (D.G.) (1995), 183 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty The Queen (appellant) v. Darryl Gordon Park (respondent)

(23876)

Indexed As: R. v. Park (D.G.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

June 22, 1995.

Summary:

An accused was convicted on a sexual assault charge. The accused appealed.

The Alberta Court of Appeal, McFadyen, J.A., dissenting, in a decision reported 145 A.R. 207; 55 W.A.C. 207, allowed the appeal and directed a new trial. The Crown appealed.

The Supreme Court of Canada allowed the appeal and restored the conviction.

Criminal Law - Topic 655

Sexual offences - General rules - Corrob­oration - General - [See third Criminal Law - Topic 674 ].

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent - [See all Criminal Law - Topic 674 ].

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - Two weeks before an alleged sexual assault, the accused claimed that he and the complain­ant were "quite intimate" and talked of sex and birth control - She maintained that they kissed, talked about birth control and her nonbelief in premarital sex - At 6:10 a.m. on the day in issue, the complainant, dressed in a bathrobe, greeted the accused with a kiss on the cheek - He claimed that she was a willing participant and only resisted respecting use of a condom - He denied intercourse - The complainant testified that she vigorously resisted and went into a state a shock - The Supreme Court of Canada affirmed the trial judge's refusal to put the defence of mistaken belief to the jury where the totality of the evidence did not lend any air of reality to the defence.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of mistaken belief in consent - In discussing the application of the "air of reality" threshold for putting the defence to a jury, the Supreme Court of Canada stated that "[w]here the accused asserts that the complainant actually consented, then it is artificial to inquire further into whether he also expressed a belief that she was con­senting. The absence or presence of an actual statement indicating a belief in consent is of no consequence in all but the most unusual of cases . Presuming that the accused is de facto asserting such a belief, the more fundamental question is whether that belief is an honest belief, capable of supporting the defence of honest but mis­taken belief in consent ..." - See paragraph 17.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of honest but mistaken belief in consent - The Supreme Court of Canada stated that for there to be an "air of real­ity" to the defence, the totality of the accused's evidence must be reasonably and realistically capable of supporting the defence - Although there is not, strictly speaking, a requirement of corroboration, the evidence must amount to more than a bare assertion - There must be support for it in the circumstances - Independent evidence which supports the accused's testimony will improve the chances of the defence - The judge's role is limited to ascertaining whether the accused has dis­charged the evidentiary burden imposed by s. 265(4) of the Criminal Code - See paragraphs 18 to 20.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - In context of a sexual assault, the Supreme Court of Canada stated that for practical and policy reasons courts must be wary of being too ready to put the defence of mistaken belief in consent to the jury - It is the rare exception rather than the general rule that a sexual assault will have been committed by accident - See paragraph 21.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of honest but mistaken belief in consent - The Supreme Court of Canada discussed the significance of the accused and the complainant giving diametrically opposed testimony - The court stated that when there are similar stories and the only material contradiction is in the interpreta­tion of what happened, then the defence should generally be put to the jury, unless the accused's conduct demonstrates reck­lessness or wilful blindness to the absence of consent - When the accused asserts voluntary consent and that the complainant was an active, eager or willing partner and the complainant testifies that she resisted, the courts have generally refused to put the defence to the jury - In such cases, the question is generally simply one of credi­bility - See paragraphs 22 to 26

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of mistaken belief in consent - The Supreme Court of Canada stated that although it might be difficult to define the constituent components of the "air of reality" threshold for putting a defence to a jury, it was possible to delimit with some degree of certainty when an "air of reality" was absent - The court discussed this approach, stating that a failure to find a readily ascertainable "absence of air of reality" did not preclude a finding that the "air of reality" threshold had nonetheless not been satisfied - Rather, the former constituted a subset of the latter - See paragraphs 27 to 37.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of mistaken belief in consent - The Supreme Court of Canada stated that the air of reality standard for putting the defence to a jury could not "... be evalu­ated in light of the 'totality of the evidence' without first breaking down that evidence, distilling it, and finally analyzing it" - The court suggested breaking the evidence into the following categories: (1) testimonial evidence which is materially in dispute (2) real evidence, the existence, significance or appreciation of which is materially in dispute; (3) testimonial evidence which is not materially in dispute; and (4) real evidence, the existence, significance and appreciation of which is not materially in dispute - See paragraphs 28, 29.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - An accused charged with sexual assault raised the defence of mistaken belief in consent - In deciding whether or not the defence should be put to a jury, the Supreme Court of Canada stated that "... it is important to recognize that what is truly important to the 'air of reality' test in respect of a par­ticular defence is that the evidence said to provide some basis for that defence must actually relate to, and support, that par­ticular defence. Evidence going to an ancillary issue or failing to address a clear and undisputed logical inconsistency in an accused's claim to the honest mistake defence, then, will not, itself, be sufficient to lend that defence an air of reality." - See paragraph 37.

Criminal Law - Topic 674

Sexual offences - Sexual assault - Defences - Mistake of fact - The Supreme Court of Canada, per L'Heureux-Dubé, J., discussed the interaction of consent and mistake of fact in a sexual assault situation - See paragraphs 38 to 51 - L'Heureux-Dubé, J., stated that "... we must accept that the mens rea for sexual assault is also established by showing that the accused was aware of, or reckless or wilfully blind to, the fact that consent was not communi­cated. In other words, the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying 'no', but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying 'yes'." - See para­graph 39.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - [See first Criminal Law - Topic 674 ].

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - The Supreme Court of Canada stated that there was no air of reality to a defence, and therefore no need to put it to a jury, where "(1) the totality of the evidence for the accused is incapable of amounting to the defence being sought; or (2) the totality of the evidence for the accused is clearly, logi­cally inconsistent with the totality of evi­dence which is not materially in dispute. It goes without saying, of course, that these standards should be viewed realistically, and not evaluated according to purely speculative or hypothetical extremes. We must recall that a defence should not be put to the jury unless a reasonable jury, properly instructed and acting judiciously, could acquit on that basis." - See para­graph 30.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - The Supreme Court of Canada discussed the nature and purpose of the "air of reality" threshold for putting a defence to a jury, stating that "[i]t is a legal threshold, not a factual one. It is an error of law for a judge not to put a defence to the jury where an air of reality to that defence exists and is an error of law to put a defence to a jury where no such air of reality exists. This line can sometimes be a fine one, however, for although we urge trial judges not to descend into the arena of facts, we none­theless require that they consider nothing less than the 'totality of the circumstances' in deciding whether an air of reality exists to found a particular defence" - See para­graph 13.

Cases Noticed:

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; [1980] 4 W.W.R. 387; 14 C.R.(3d) 243; 111 D.L.R.(3d) 1; 52 C.C.C.(2d) 481, consd. [para. 11].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481; 109 D.L.R.(4th) 478; 26 C.R.(4th) 1; 19 C.R.R.(2d) 93, consd. [para. 12].

R. v. Laybourn, Bulmer and Illingworth, [1987] 1 S.C.R. 782; 75 N.R. 271; [1987] 4 W.W.R. 577; 39 D.L.R.(4th) 641; 14 B.C.L.R.(2d) 196; 58 C.R.(3d) 48; 33 C.C.C.(3d) 385, consd. [para. 13].

R. v. Reddick (S.J.), [1991] 1 S.C.R. 1086; 122 N.R. 348; 47 O.A.C. 289; 5 C.R.(4th) 389; 64 C.C.C.(3d) 257, consd. [para. 21].

R. v. Guthrie (1985), 8 O.A.C. 277; 20 C.C.C.(3d) 73 (C.A.), refd to. [para. 22].

R. v. White (1986), 24 C.C.C.(3d) 1 (B.C.C.A.), refd to. [para. 22].

R. v. Livermore (C.) (1994), 71 O.A.C. 340; 18 O.R.(3d) 221 (C.A.), refd to. [para. 22].

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 89 C.C.C.(3d) 96, refd to. [para. 23].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 31].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, consd. [para. 35].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 7 C.R.(4th) 233; 66 C.C.C.(3d) 454, consd. [para. 49].

R. v. Leary, [1978] 1 S.C.R. 29; 13 N.R. 592, consd. [para. 50].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 50].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 50].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 51].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; [1990] 4 W.W.R. 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329, refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [paras. 38, 51]; sect. 28 [para. 38].

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1)(a), sect. 265(2) [para. 4]; sect. 265(4) [paras. 4, 12, 20].

Authors and Works Noticed:

Great Britain, Report of the Advisory Group on the Law of Rape (1975), p. 3 [para. 41].

Vandervort, Lucinda, Mistake of Law and Sexual Assault: Consent and Mens Rea (1987-88), 2 C.J.W.L. 233, pp. 267, 277 [para. 42].

Wiener, Robin D., Shifting the Communi­cation Burden: A Meaningful Consent Standard in Rape (1983), 6 Harv. Women's L.J. 143, pp. 147 [para. 40]; 148, 149 [para. 47]; 160, note 104 [para. 41].

Counsel:

Paul C. Bourque, for the appellant;

Alan S. Rudakoff, for the respondent.

Solicitors of Record:

Paul C. Bourque, Edmonton, Alberta, for the appellant;

Macleod Dixon, Calgary, Alberta, for the respondent.

This appeal was heard on December 7, 1994, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The decision of the court was delivered on June 22, 1995, in both official languages, including the following opinions:

Lamer, C.J.C. (La Forest, Gonthier, Cory and McLachlin, JJ., concurring) - see paragraphs 1 and 2;

L'Heureux-Dubé, J. - see paragraphs 3 to 56;

Sopinka, J. - see paragraphs 57 and 58;

Iacobucci, J. (Cory and Major, JJ. con­curring) - see paragraphs 59 and 60.