Where the complainant (or deceased) is an Indigenous person, in particular a woman or girl, an additional instruction addressing myths, stereotypes, biases and prejudices specific to them must be given in accordance with R. v. Barton, 2019 SCC 33, at paras 200-201. If the complainant (or deceased) is also a sex worker, a specific instruction in accordance with para 201 must also be given. However, this instruction must not privilege the rights of the complainant over those of the accused (R. v. Barton, at para 203). The relevant paragraphs state:

[200]     With this in mind, in my view, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on. Turning a blind eye to these biases, prejudices, and stereotypes is not an answer. Accordingly, as an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls. This instruction would go beyond a more generic instruction to reason impartially and without sympathy or prejudice.

[201]     Insofar as the content of such an instruction is concerned, there is no magic formula. In my view, trial judges should be given discretion to tailor the instruction to the particular circumstances, preferably after having consulted with the Crown and the defence. In a case like the present, the trial judge might consider explaining to the jury that Indigenous people in Canada — and in particular Indigenous women and girls — have been subjected to a long history of colonization and systemic racism, the effects of which continue to be felt. The trial judge might also dispel a number of troubling stereotypical assumptions about Indigenous women who perform sex work, including that such persons:

•     are not entitled to the same protections the criminal justice system promises other Canadians;

•     are not deserving of respect, humanity, and dignity;

•     are sexual objects for male gratification;

•     need not give consent to sexual activity and are “available for the taking”;

•     assume the risk of any harm that befalls them because they engage in a dangerous form of work; and

•     are less credible than other people.

…

            [203]     With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused. The objective would instead be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case and attempt to remove them from the jury’s deliberative process in a fair, balanced way, without prejudicing the accused.

Where an issue arises about whether consent was vitiated by force, threats, fear, fraud, or abuse of authority[9] , the instruction on consent must be given in two parts in accordance with R. v. Hutchinson, 2014 SCC. 19.

Where applicable, add the following:

Consent cannot be inferred solely from the relationship between the person charged and the complainant.

Where applicable, add the following:

Consent cannot be inferred from the manner of dress of a complainant.

Where there is an air of reality to the defence of honest but mistaken belief in communicated consent[16] , add this instruction:

(NOA)’s position is that s/he was unaware that (NOC) did not consent. In fact, it is his/her position that s/he honestly believed that (NOC) communicated his/her consent to the sexual activity in question.

A belief is a state of mind, in this case, (NOA)’s state of mind. Ask yourselves whether (NOA) honestly believed that (NOC) effectively said yes through his/her words or actions.

A belief by the person charged that the complainant, in his/her own mind, wanted him/her to touch him/her but did not express that desire, is not a defence. Mere speculation on the part of the person charged as to what was going on in the complainant’s mind provides no defence.

Under our law, there cannot be an honest belief that (NOC) communicated consent to the physical contact unless (NOA) took reasonable steps in the circumstances known to (NOA) at the time to find out whether (NOC) consented.[17] In order to determine whether (NOA) took reasonable steps, first determine what were the circumstances known to (NOA). Then ask yourselves whether a reasonable person with that knowledge would make further inquiries to ensure (NOC) was consenting. If the answer is yes, ask whether (NOA) made those inquiries. If s/he did not, then s/he cannot claim s/he honestly believed (NOC) had communicated his/her consent.

If a reasonable person would not have made further inquiries in the circumstances known to (NOA), (NOA) may claim s/he honestly believed (NOC) communicated consent. What a reasonable person would do depends entirely on the circumstances of the case.

Even if you find that (NOA) took reasonable steps, you must go on to consider whether (NOA) honestly believed that (NOC) communicated consent to the sexual activity in question.

To determine whether (NOA) honestly believed that (NOC) communicated consent to the sexual activity in question, you must consider all the circumstances surrounding that activity. Take into account any words or gestures, whether by (NOA) or (NOC), and any other indication of (NOA)’s state of mind at the time.

(NOA) must have honestly believed that (NOC) communicated his/her consent to the sexual activity in question. An honest belief cannot be based on (NOA)’s self-induced intoxication . There is no honest belief if (NOA) saw a risk that (NOC) would not consent to the physical contact, but went ahead anyway despite that risk. Similarly, there can be no honest belief if (NOA) was aware of indications that (NOC) did not consent, but deliberately chose to ignore them because (NOA) did not want to know the truth.[18]

In addition, there cannot be an honest belief in communicated consent if there is no evidence that (NOC)’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.[19]

(NOA)’s belief must be honest, but it does not have to be reasonable. However, the presence or absence of reasonable grounds may help you decide whether (NOA)’s belief was honest. Look at all the circumstances in deciding this issue. You must consider all the evidence, including anything said or done in the circumstances.

(NOA) does not have to prove that s/he honestly believed that (NOC) communicated consent to the physical contact. Rather, the Crown must prove beyond a reasonable doubt that (NOA) had no such belief.

Note for Trial Judge on “reasonable steps”:

In R. v. Barton, 2019 SCC 33, the Court said that a jury must be instructed on what can and cannot amount to a reasonable step. Include in your review of the evidence what you have found to be evidence of a reasonable step from your air of reality ruling and identify evidence that cannot be a reasonable step as outlined at paras 106-109^[20] of R. v. Barton.

[1] This instruction only covers ss. 265.(1)(a) and (2), of the Criminal Code, i.e., a sexual assault by touching. These instructions will have to be modified if the assault alleged is pursuant s. 265(1) (b) or (c).

[2] Sexual offences underwent major revisions in the Criminal Code in 1983 and 1992. Instructions must conform with the law as it was at the time of the alleged offence. For example, rape and indecent assault were repealed in 1983.

[3] This instruction uses the language of “touching” rather than “force” to make it consistent with the language of ss. 151-153 of the Criminal Code. This language also avoids the potential for inconsistent verdicts: See: R. v. Tremblay, 2016 ABCA 30, 334 CCC (3d) 520; R. v. S.L., 2013 ONCA 176; and R. v. Tyler, 2015 ONCA 599.

[4]  Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

              Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.

[5] Consent is not a defence if the complainant is under the age of sixteen. There are exceptions to this covered under s. 150.1 of the Criminal Code.

[6] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or automatism.

[7] In some cases, it may be appropriate to instruct the jurors that they can convict of sexual assault even if the accused’s purpose was unrelated to sexual gratification. See: R. v. V. (K.B.), [1993] 2 SCR 857; R. v. Chase, [1987] 2 SCR 293.

[8] See ss. 273.1 and 265(3) of the Criminal Code. Note that s 273.1(1.2) of the Code provides that the question of whether no consent was obtained is a question of law. This instruction assumes that the purpose of that provision is simply to clarify the Crown’s appellate rights under s. 676(1)(a), not to take the issue of consent away from the jury.

[9] Section 273.1(2)(c).

[10] If there is evidence that the complainant agreed to the touching, but not to its sexual nature, or was mistaken as to the identity of the partner, the jury will have to be instructed that these issues go to the question of whether the complainant voluntarily agreed to the sexual activity in question. See R. v. Hutchinson, 2014 SCC 19. For example, consent to a medical examination is not consent to sexual touching.

[11] Section 273.1(1.1).

[12] Section 273.1(2)(a.1), (b), and s. 273.1(3). The forms of incapacity to consent are not limited. For example, incapacity might arise from intoxication by alcohol or other drugs, or from mental disability. Whenever this issue arises on the evidence, an appropriate instruction will have to be given. Some guidance may be derived from R. v. M.A.P., [2004] N.S.J. No. 55 (C.A.), 2004 NSCA 27 at para. 15; R. v. Al-Rawi, 2018 NSCA 10; and R. v. Siddiqui, 2004 BCSC 1717.

[13] See: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 61.

[14] On one interpretation of R. v. Ewanchuk, [1999] 1 S.C.R. 330, knowledge of the accused (or recklessness or wilful blindness) that there was no consent is a component of the mens rea that the Crown must prove in every sexual assault case. See also R .v. J.A., 2011 SCC 28 at para. 24. This is the approach taken here. However, the other possible interpretation of Ewanchuk, raised as a question in R. v. Barton, 2017 ABCA 216; at para 239, see also
R. v. Barton, 2019 SCC 33, is that intent to touch is the only requirement for mens rea, except in those cases where there is an air of reality to the defence of honest belief in consent, and then knowledge becomes a component of the mens rea. Otherwise, the argument goes, the Crown would carry the burden of disproving honest belief in consent even where it is not a live issue (either because it was not raised or does not meet the air of reality threshold). See the suggested jury instruction on the latter approach at footnote 105 of the Alberta Court of Appeal’s decision in Barton: “If you are satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity, you should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting to the sexual activity in question or was reckless and chose to take the risk.”

[15] See: R. v. J.A., 2011 SCC 28 at para. 24; R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para 42; and R. v. Barton, 2019 SCC 33 at para 87.

[16] In R. v. Barton, 2019 SCC 33, the S.C.C. held, at para 92, that this defence should be referred to as the defence of “honest but mistaken belief in communicated consent” rather than the previous label  of honest but mistaken belief in consent.

[17] Section 273.2(b).

[18] Section 273.2(a).

[19] Section 273.2(c).

[20] R. v. Barton, 2019 SCC 33, at paras 106-109 :

[106]            Keeping in mind that “consent” is defined under s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question,” what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.

[107]            That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537).

[108]            It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.

[109]            Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.

[21] Include the bracketed words if the jury has been instructed on mistaken belief in consent.

[22]  Include the bracketed words if the jury has been instructed on mistaken belief in consent.

[23] Include the bracketed words if the jury has been instructed on mistaken belief in consent.

[24] This instruction does not mention the possible included offence of assault. If counsel seek to have the jury instructed that included offence, be aware that the definition of consent is different for simple assault (see s. 265(3)) Criminal Code) than it is for sexual assault (s. 273.1 Criminal Code).