R v Alboukhari: Misapprehended Evidence and “Reasonable Steps” to Ascertain Consent

In R v Alboukhari, 2013 ONCA 581 [Alboukhari], a decision released by the Ontario Court of Appeal on September 27, 2013, the court closely analyzed the trial judge’s finding related to a sexual encounter between two young people on a camping trip. The trial judge had found that the defence of honest but mistaken belief in consent was not available to the defendant—now the appellant—and, in turn, convicted him of sexual assault. On appeal, it was necessary for the court to determine whether this finding was the result of a misapprehension of evidence on the part of the trial judge.

Factual Background

In June 2008, seven young people, including the appellant and the complainant, went on a camping trip. On the first night of the trip, the complainant, S.R., engaged in sexual activity with the appellant. She did so, however, under the false belief that she was having sex with her boyfriend, Donald Doucette, who was also on the trip.

Earlier that night, Mr. Doucette had gone on a boat ride with the appellant and one of his roommates, Mr. Fisher. During the boat ride, Mr. Doucette stated that he wanted to sleep with one of his girlfriend’s friends, who was also on the trip, and that the appellant or Mr. Fisher were welcome to have sex with his girlfriend. This led the appellant to conclude that Mr. Doucette was not in a committed relationship with S.R.

Upon their return to the camping site, Mr. Doucette took S.R.—who, by that time, had consumed a significant amount of alcohol and felt sick—into his tent and, while she was fully clothed, helped her get into a sleeping bag. A short time later, the appellant entered the tent and had sexual intercourse with S.R. The intercourse ended immediately after S.R. discovered that she was having sex with the appellant, and not her boyfriend. After S.R. reported this incident to the police the next day, the appellant was charged with sexual assault.

Judicial History

The issue before the trial judge was not one of consent, as it was clear that the complainant had not consented to sexual intercourse with the appellant. The only issue before the court, then, was whether the defence of honest but mistaken belief in consent was available to the appellant. As per section 273.2 of the Criminal Code, RSC 1985, c C-46, in order to avail himself of this defence the appellant would have to demonstrate that, in the circumstances known to him at the time, he had taken reasonable steps to ascertain that S.R. was consenting to have sex with him.

Paramount to the trial judge’s decision was the lack of visibility in the tent. Citing R v Crangle, 2010 ONCA 451, the trial judge determined that because the tent was pitch black and the appellant had no reason to believe that S.R. would consent to sexual intercourse with him, it was necessary for the appellant to make his identity perfectly clear to S.R. The trial judge found that the appellant had not done so. The trial judge also found that the appellant was with S.R. when she vomited due to her excessive alcohol consumption, which was of crucial importance to his decision. Based on these findings, the trial judge concluded that the defence of honest but mistaken belief in consent was not available to the appellant and convicted him of sexual assault.

Issues on Appeal

There were two issues on appeal:

  1. Did the trial judge misapprehend or fail to consider material evidence?
  2. If so, did this result in a miscarriage of justice or a legal error?

“Reasonable Steps”

The appellant submitted that the trial judge misapprehended evidence in relation to his “reasonable steps” analysis. If an honest but mistaken belief in consent is to be used as a defence in a sexual assault case, section 273.2(b) of the Criminal Code requires that reasonable steps be taken by the accused to ascertain that the complainant is consenting to have sex with him or her. As stated by Epstein JA (Alboukhari at para 42):

[W]hile reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused.  The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time.

The accused’s mistaken belief in consent does not need to be reasonable for the accused to ask the trier of fact to acquit on the basis of the defence.

Misapprehension of Evidence

The Ontario Court of Appeal stated that a misapprehension of evidence includes “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” (ibid at para 26). In order to result in a miscarriage of justice, the misapprehension must be central to the trial judge’s finding of guilt. As per the Supreme Court of Canada’s decision in R v Lohrer, 2004 SCC 80 at para 2:

The misapprehension of evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction.”

In short, “an appellate court must ask itself whether the trial judge failed to direct him or herself to the relevant issues or erred in the appreciation of evidence in a manner that could have affected the outcome” (Alboukhari at para 30). There will be no miscarriage of justice if the trial judge would have arrived at the same conclusion without the misapprehended evidence. This is a stringent test.

The Ontario Court of Appeal found that the trial judge had misapprehended the evidence in relation to five issues, which “coloured his assessment of the appellant’s credibility and led him to make certain factual findings relating to the reasonable steps analysis—specifically, the circumstances known to the appellant at the time he engaged in sex with S.R.” (ibid at para 48).

  1. The appellant’s knowledge of S.R.’s illness: The trial judge found that all of the other witnesses stated that the appellant was present when the complainant vomited. On the contrary, the record demonstrated that all three males on the trip testified that the appellant was not present when this occurred. The “trial judge relied on this misapprehended evidence both in determining the circumstances known to the appellant and in assessing his credibility” (ibid at para 52), as the appellant’s knowledge that S.R. had vomited informed the reasonable steps analysis. And, as the trial judge rejected the appellant’s testimony that he had no knowledge of S.R. vomiting, this conclusion factored into the trial judge’s credibility assessment.
  2. The visibility in the tent: The trial judge rejected the appellant’s claim that the visibility in the tent was very good. In doing so, he stated that Mr. Doucette had testified that the visibility was non-existent when, in fact, Mr. Doucette gave no such testimony. The trial judge also failed to take into account testimony that weakened his conclusion that the tent was pitch black. For example, Mr. Doucette and one of the other males on the trip were able to discern the appellant’s state of duress upon entering the tent immediately following the incident. This misapprehension of evidence was critical to the trial judge’s reasonable steps analysis, as he concluded that the tent was too dark for the complainant to determine the identity of her sexual partner.
  3. The appellant’s timeline of events: The trial judge made misapprehensions concerning the appellant’s evidence as to the timing of events, which factored into his credibility assessment of the appellant.
  4. The physical differences between the appellant and Mr. Doucette: The trial judge failed to assign any importance to the difference in body type between the two men; the appellant weighed 155 pounds and Mr. Doucette weighed 200 pounds. The trial judge stated that this size difference would be almost impossible for the complainant to discern given the lack of light in the tent. The Ontario Court of Appeal failed to see how visibility would impact the complainant’s ability to perceive significant differences in body type. The failure to consider this “created a situation whereby he (the trial judge) considered the circumstances known to the appellant through a lens that presented an incomplete picture” (ibid at para 73).
  5. The reliability of S.R.’s evidence: The trial judge failed to consider factors that negatively impacted the complainant’s reliability, including the fact that she was testifying as to “specific details of a brief sexual encounter while she was intoxicated and that had taken place years earlier.  While the trial judge mentioned that S.R. admitted that her memory of certain details were ‘hazy’, it does not appear that he considered whether this affected her reliability” (ibid at para 75). The trial judge also overlooked the fact that S.R. gave three different accounts as to how the sexual contact started.


The Ontario Court of Appeal determined that the circumstances known to the accused—which are the starting point for a reasonable steps analysis—were as follows: “in a pitch dark tent the appellant initiated sexual contact with a woman he barely knew, who was intoxicated and who called out her boyfriend’s name many times during the course of the sexual encounter” (ibid at para 79). These findings, however, were undermined by the above-outlined evidentiary misapprehensions: “because the trial judge’s reasonable steps analysis was fundamentally flawed, the conviction cannot be trusted as it is not based exclusively on the evidence” (ibid at para 81). As such, the conviction was set aside and a new trial was ordered.

This case provides useful guidance on the appeal ground of misapprehension of evidence, which is an exception to the generally accepted view that a trial judge’s findings of fact are not subject to review. In doing so, the court’s finding stresses the importance of having trial judges carefully evaluate evidence in its totality without prejudice. In addition, Alboukhari provides an excellent summary of the law on the reasonable steps required to ascertain consent to sex.

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