Six governing principles for the reasonable steps analysis under s. 273.2(b); the accused must subjectively accept as true that consent was communicated — suspecting, guessing or hoping is not enough.

Leading authority. Consent means different things at the actus reus and mens rea stages (paras. 89–90); reasonable steps are a precondition to honest but mistaken belief (para. 104); steps grounded in rape myths cannot be reasonable (para. 107).

Apparent consent is vitiated where significant bodily harm is caused and the accused intended it, was reckless or wilfully blind to it, or it was objectively foreseeable.

Section 273.1(2)(c) may apply even where there is a reasonable doubt about the absence of consent; inducement through abuse of trust may be inferred from the circumstances.

The sexual nature of the contact is assessed objectively: viewed in all the circumstances, would a reasonable observer perceive a sexual or carnal context?

Section 273.1(2)(c) does not criminalise every sexual act within a relationship of trust — the Crown must prove both the position of trust and that its abuse induced the activity.

A complainant’s absence of memory makes it easier to “cobble together” both accounts to support honest but mistaken belief; a wholly unsupported belief is not an honest one.

The foundational case. Three elements of the actus reus; no defence of implied consent; the accused may point to the complainant’s words and actions before and during the incident to raise a doubt (para. 29); silence, passivity or ambiguous conduct is not consent (para. 51).

Where the complainant experienced a blackout, the trier of fact must consider that she may have been awake, apparently functioning normally, and capable of consenting.

Restates the five elements of the offence (para. 25) and sets the four-part capacity test (para. 57): the complainant must be capable of understanding the physical act, its sexual nature, the identity of the partner, and that she can refuse.

Prior sexual activity may be relevant to honest but mistaken belief, but the belief cannot rest simply on evidence that the complainant consented at “some point” in the past.

Absent expert evidence, blackout from intoxication is not direct evidence of lack of consent or of incapacity; the jury must be told that the resulting absence of evidence does not equate to non-consent.

Where two accounts cannot realistically be spliced together, there is “no middle ground” and honest but mistaken belief has no air of reality.

Two-step consent analysis: first, was there voluntary agreement to the specific physical sex act under s. 273.1(1); second, was that agreement vitiated under s. 265(3) or s. 273.1(2)?

The reasonable steps inquiry is fact-specific, and steps cannot be founded on the complainant’s silence, passivity or ambiguous conduct.

Consent requires a conscious, operating mind throughout; there is no broad advance consent and an unconscious person cannot consent.

Air of reality found where the complainant could not remember parts of the encounter, leaving room to cobble the two accounts together.

Consent must be actual and ongoing but need not be verbal; requiring separate spoken consent at every step of an encounter is an unnecessarily high standard.

Absent expert evidence, memory loss or blackout “is direct evidence of nothing except the fact that the witness cannot testify as to what happened.” Affirmed at 2008 ONCA 200 (linked below).

Court of Appeal affirmation of the blackout ruling above.

Consent can be conditional. Where condom use is a condition of agreement, it forms part of the sexual activity in question; intercourse without a condom is a different physical act.

Flirtatious behaviour, suggestive clothing and sexual self-expression are not indicators of consent; evidence of physical sexual response is not probative of consent either.

The complainant’s words and actions around the time of the incident may be used to challenge her assertion of non-consent, but a spoken “yes” is not determinative either way.

Comprehensive review of “cobbling.” Diametrically opposed versions do not automatically defeat honest but mistaken belief, but there must be evidence of a genuine situation of ambiguity.

Where the parties give similar versions of the facts and differ only in interpretation, honest but mistaken belief should generally be left with the trier of fact.

A complainant’s statement that she did not consent “does not end the work of the trier of fact” — it must be assessed against the totality of the evidence.

Most recent Supreme Court statement on capacity. Reaffirms the four-part G.F. test and confirms that capacity may be proved by circumstantial evidence alone, including outward signs of impairment.

The trial judge may accept some, all or none of the evidence; “rough sex” is an ambiguous term and saying one likes it is not consent to specific acts.

Origin of the prohibition on propensity reasoning — prior sexual activity cannot be used to suggest the complainant was more likely to have consented (the first “twin myth”).

Consent turns on voluntary agreement, not desire. Consent is not invalidated merely because the complainant was persuaded or convinced to agree.

Section 273.1(2)(c) protects the vulnerable; inducement by abusing a position of trust, power or authority does not require the coercion contemplated by s. 265(3)(d).

Pressuring or persuading someone to have sex is not itself the offence; the offence is persisting in sexual touching after unwillingness has been expressed.

How consent was communicated between these parties in the past may establish legitimate expectations relevant to honest but mistaken belief — but not broad advance consent.

Only intoxication that deprives the complainant of an operating mind removes capacity. Drunkenness, disinhibition and memory loss are not incapacity: “a drunken consent is still a valid consent.”