The accused made sexual advances on a girl, and she was saying no the whole time. When she said no, the guy would stop, and would start again later. Afraid, her subsequent refusals were not as vehement. The trial judge held that the complainant’s failure to communicate her fear rendered her subjective feelings irrelevant, and acquitted the accused. He characterized the accused’s defence as one of “implied consent.”
Is implied consent an available defence in Canadian sexual assault cases?
No. Crown’s appeal allowed; conviction substituted.
The doctrine of implied consent has been recognized in our common law in a variety of contexts, but sexual assault is not one of them. The complainant either consented or not. There is no third option.
Meaning of consent in the context of an honest but mistaken belief in consent
The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said yes through her words and/or actions. Different from consent in actus reus.
Limits on honest but mistaken belief in consent
Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies
L’Heureux-Dubé J.: Unless and until an accused first takes reasonable steps to assure that there is consent, the defence of honest but mistaken belief does not arise.
Extensions of guilt
R. v. Kulbacki  1 C.C.C. 167 (Man. C.A.)
Appellant was convicted of dangerous driving. He allowed a 16-year-old girl to drive his vehicle dangerously without doing anything to stop her. He was in the passenger seat at the time and was charged with the substantive offence. The Crown argued that the accused had aided and abetted the girl. The defence was one of law, stating that he had no duty to do anything and under no liability as long as he did not encourage the commission of the offence.
Is the appellant liable?
Yes. Appeal dismissed; conviction affirmed.