Contemporaneousness of Sexual Consent in R v AE
Content Warning: This article includes depictions of sexual violence that may evoke strong emotions for some readers.
The jurisprudence surrounding the requirement for consent as a defence for sexual assault has expanded substantially to dispel the stereotypes and myths associated with sexual assault, most recently refined in R v Barton, 2019 SCC 33 [Barton]. Despite this jurisprudential history, R v AE 2022 SCC 4 [AE] demonstrates how trial judges may mistake the mere presence of consent for sexual activities as sufficient evidence to dismiss violent sexual behaviour.
Delivering an oral judgment on behalf of a unanimous bench, Justice Moldaver admonished the trial judge for failing to consider the narrow scope of the complainant’s consent to sexual activity and the possibility that consent was withdrawn throughout the duration of the sexual act with the accused individuals, AE and TCF. Through this conclusion, the Supreme Court of Canada (“SCC”) reinforced the high bar required for consent to be found in cases of sexual assault and that in clear instances of sexual assault, a guilty verdict can be drawn by an appellate court to substitute the trial judge’s original conviction.
Facts & Trial Decision
The complainant was a 17-year old woman who was “hanging out” with the two accused individuals, AE and TCF, and a young person on the evening of December 28, 2016 (2021 ABCA 172 at para 4 [AE ABCA]). After drinking and talking in the basement of the young person’s home, the complainant texted her friend that she was considering having a “gang bang” with the three males (AE ABCA, para 5). The three males then engaged in violent sexual acts with the complainant, striking, verbally abusing, and violating the complainant with an electric toothbrush during vaginal intercourse (AE ABCA, para 5). Part of the activity was videotaped unbeknownst to the complainant and the transcript of the recording revealed that she had yelled “ow” and “no” on multiple occasions throughout the activity (AE ABCA, para 8). The video ended with the complainant fellating TCF and TCF trying to compel the complainant to say that she consented to the activity (AE ABCA, para 10). The complainant refused to, and upon returning home, called the police to report the assault (AE ABCA, para 12). A medical exam conducted shortly after revealed that the complainant suffered from minor vaginal tears and redness on her face and buttocks (AE ABCA, para 12). The young person was governed by the Young Criminal Justice Act SC 2002, c 1 and tried in Youth Court, where he pleaded guilty to one charge of sexual assault (AE ABCA, para 2).
The accused individuals were charged with one count of sexual assault and one count of sexual assault with a weapon (AE ABCA, para 2). Both sexual assault charges were acquitted (AE ABCA, para 2). In reaching this conclusion, the trial judge found the complainant’s testimony that she did not consent to the sexual activities uncredible because she had inconsistencies in her police statement and had offered to fellate AE after the alleged assault (AE ABCA, paras 14 and 17). While the trial judge was also troubled by the accused individuals’ credibility, he ultimately believed their claim that the complainant had expressed a desire to engage in sex with them (AE ABCA, para 20). The trial judge however found that the complainant did not consent AE violating her with the toothbrush and upheld AE’s conviction of sexual assault with a weapon (AE ABCA, para 21).
The ABCA Decision
The Court of Appeal of Alberta (ABCA) unanimously overturned the trial judge’s decision and substituted guilty verdicts on the count of sexual assault for both accused individuals. However, the bench was divided on why the guilty verdicts should be substituted and whether TCF should also be found guilty on the sexual assault with a weapon charge.
The Absence of Consent
Justice Martin and Justice Pentelechuk of the ABCA substituted a guilty verdict on the ground that no consent was obtained pursuant to s. 273.1 of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. S. 273.1(2)(d) and (e) specifically indicates that no consent is obtained if “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or the complainant, having consented to engage in the sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity.”
The two justices referred to the judicial interpretation of “consent” succinctly summarized by the SCC in R v Barton 2019 SCC 33 to provide guidance on their reasoning: consent needs to be given consciously; it must exist at the time of the sexual activity in question; and it must be linked to the “sexual activity in question.” The SCC also provided that broad advance consent of an undefined scope will not afford the accused individual a defence of mistaken belief of consent, and that it would be an error of law for a court to assume that a woman gave her consent to “any and all sexual activity” until and unless she says no (Barton, paras 88-98).
When the above definition of consent is applied to the present case, the two justices were able to point to specific instances where the complainant’s refusal to consent was communicated–when she said “no” or “stop”–as evidence that consent was withdrawn (AE ABCA, paras 38 and 40). They rebuked the trial judge for failing to consider whether consent was withdrawn at any point before the violation by the toothbrush and for accepting her consent at the onset of the sexual act as indication that consent was present throughout (AE ABCA, para 43).
An additional issue that was discussed by Justice Martin regarding consent was whether the video recording of the complainant vitiated any possible consent as the complainant was unaware that she was being recorded. The Crown had advanced the argument that pursuant to s. 265(3)(c) of the Criminal Code, which provides that consent cannot be obtained in instances of fraud, the complainant’s consent to the sexual activity was vitiated (AE ABCA, para 50). Notwithstanding that the appeal would be allowed as it was found that the complainant did not consent to the sexual act, Justice Martin added that surreptitious recording of private sexual activity was so egrigious and would violate an individual’s dignity and privacy (AE ABCA, para 68). The damaging nature of the recording would nullify the complainant’s consent, even if she had initially consented to the sexual activity in question (AE ABCA, para 75).
Could consent even be used as a defence in this case?
Justice O’Ferrall wrote in his concurring opinion that contrary to his colleagues’ opinion, the accused individuals should not have had access to the defence of consent in the first place. He relied on R v Jobidon  2 SCR 714, 128 NR 321 in stating that consent could not be obtained if the accused is found “to have intentionally applied force causing serious bodily harm” (AE ABCA, para 122 citing Jobidon, 766). Justice O’Ferrall found that in this instance, there were explicit verbal comments made by the accused individuals exhibited in the video which served as evidence of subjective intent to cause bodily harm while the assault was being committed (AE ABCA, para 130). Consequently, the issue of whether the complainant consented to the sexual activity did not have to be resolved to substitute a guilty verdict to the accused individuals.
Was TCF jointly liable for the sexual assault using a weapon charge?
The last issue that the ABCA was divided on was whether TCF was liable for a count of sexual assault using a weapon alongside AE. Justice Martin and Pentelechuk found TCF not jointly liable for the violation of the complainant using the toothbrush (AE ABCA, para 161). Their arguments rested on the fact that the Crown had chosen to advance the joint liability argument by categorizing TCF as an aider and abettor to the act, as opposed to a co-principal (AE ABCA, para 165). Justice Pentelchuk wrote that the Crown was not able to satisfy the burden that TCF aided and abetted AE in the sexual assault using a weapon, especially because the factual record recounted by the trial judge suggested that TCF may not have been aware of AE’s heinous act as he was being fellated by the complainant at the time (AE ABCA, para 167). Instead, they found that TCF was more appropriately jointly liable as a party to sexual assault simpliciter because while he may not have known that AE was using a weapon to assault the complainant, TCF encouraged AE to continue assaulting the complainant (AE ABCA, para 169).
Justice O’Farrell would have substituted TCF’s acquittal with one count of sexual assault using a weapon, on the grounds that he was jointly liable because he did not resist or oppose AE’s treatment of the complainant (AE ABCA, para 135).
The SCC Decision
In Justice Moldaver’s reasons from the bench, the SCC reiterated again the failure of the trial judge to address “the scope of the complainant’s consent to sexual activity and failed to consider whether her consent was withdrawn.” He thus dismissed the accused individuals’ appeal for acquittal and upheld the ABCA’s substituted convictions on the count of sexual assault based on the evidence provided. Justice Moldaver acknowledged the ABCA’s obiter on the issues of TCF’s joint liability, the vitiating of consent from the recording, and whether consent could be drawn for sexual activity where intentional bodily harm is applied, but did not provide further reasons on those matters as the guilty verdict was predetermined.
Courts and a Narrowed Definition of Consent
AE is the most recent development on the case law surrounding the definition of consent, and reaffirms the massive strides made in the Barton decision, effectively solidifying its narrow scope. The SCC has taken an activist role in filling the gap in defining consent left by Parliament in the Criminal Code, bolstering the likelihood for complainants to find justice against their assailants.
That said, cases like AE demonstrate how a misinformed trial court could nonetheless undermine the effectiveness of a constricted view of consent. In AE, the accused individuals’ initial acquittals were a result of the trial judge calling into question the complainant’s credibility. This was despite the fact that the accused individuals’ testimonies were also deemed uncredible. By painting the facts as a “he said, she said” narrative, the trial judge was able to circumvent the issue of the scope of consent and instead dismissed her account of events altogether. Although AE provides some optimism that complainants’ utterances of consent will be properly heard, it serves as a grim reminder that complainants are still too often subjected to challenges in court. Specifically, the judiciary has demonstrated that it is unable to properly account for the emotional burden complainants hold in having to testify against their perpetrators and the stakes they must endure—such as social ostracization and the fear of their reputation being ruined—to bring these cases to court in the first place.
Additionally, the court’s manner in reviewing and discussing the video evidence in the case—which was often described by the ABCA as a “frame-by-frame” or “second-by-second” analysis—completely disregarded the complainant’s dignity. The fact that the trial judge concluded the complainant lacked credibility even after watching the footage shows how courts can still be a ruthless place for the survivor, who in this case was also a minor. AE thus begs the question as to whether the inability of courts to serve justice for survivors rests on the judiciary’s systemic lack of sensitivity training for its judges and not necessarily the definition of consent.