This review will discuss the appended jury charge delivered in Spicer; specifically this review considers the issue of reasonable steps to ascertain consent which were not addressed in the charge.
This case and the charge were recently considered by the Alberta Court of Appeal and Supreme Court of Canada: R v Spicer, 2015 ABCA 190, 2015 CarswellAlta 986 (CA); 2016 SCC 3, 2016 CarswellAlta 56 (SCC).
2.0 The Facts
Spicer was tried by a judge and jury on a single count of sexual assault. The complainant was severely intoxicated at the time of the assault and she could not testify about the details of what happened. Spicer spoke to police after the sexual assault and that interview was introduced into evidence at trial. Spicer claimed that he witnessed two other men have intercourse with the complainant. When they were done Spicer said that the complainant asked why he wasn’t participating. Spicer then said that the complainant grabbed him kissed him and pulled him to the ground-and they had intercourse. When he got up, Spicer saw the other two males running as a man on a bike was approaching. When asked by the police officer whether he had sex with the complainant without her permission, Spicer responded “it wasn’t against her permission. She, she grabbed me.” Spicer was acquitted.
3.0 The Review
The Crown appealed. First, the Crown argued that the trial judge erred in law by leaving the defence of mistaken belief in consent.
Second, if the defence of honest but mistaken belief in consent was properly left with the jury the trial judge erred by failing to instruct the jury that such a mistaken belief requires that reasonable steps be taken to ascertain that the complainant was consenting.
The trial judge explained mistaken belief in consent to the jury as follows:
The law recognizes that in some circumstances an accused may have an honest but mistaken belief that a person was consenting to sexual activity. The accused does not have to prove that he had an honest but mistaken belief that the complainant was consenting; rather, the Crown must prove beyond a reasonable doubt that he did not have that belief.
In his videotape statement, the accused stated that the complainant, while naked from the waist down, stood up, kissed him, and pulled him on top of her where upon they had sexual intercourse. The only evidence that the accused made any type of inquiry of the complainant as to whether she wanted to have sexual intercourse with him is the comment during his statement that she got and he said, “How can I don’t get none?” However, there is no evidence to whom that remark was directed.
If you find that the Crown has failed to prove beyond a reasonable doubt that the accused did not have an honest but mistaken belief, you must give him the benefit of the doubt and find him not guilty of sexual assault. [Charge @ p10 ln 13-39].
The only reference in the charge to any steps taken by the accused to ascertain whether the complainant was in fact consenting is the lone passage:
The only evidence that the accused made any type of inquiry of the complainant as to whether she wanted to have sexual intercourse with him is the comment during his statement that she got and he said, “How can I don’t get none?” However, there is no evidence to whom that remark was directed. [Charge @ p10 ln 31-34].
Ruling & Comment
The Court of Appeal found no error in the trial judge’s decision to charge the jury on the issue of honest but mistaken belief in consent. The evidence from the accused’s videotaped statement “was sufficient to justify the trial judge’s decision to place the defence before the jury. Whether, in the context of all of the evidence, it raised a reasonable doubt was for the jury.” [ABCA decision @ para 2]
With respect to the second ground of appeal however the Court determined that:
[t]hough the charge referred to an "inquiry", the jury was never told that this was a legally required part of mistaken belief, or that any inquiry had to be "reasonable in the circumstances known to the accused", and that those factors were part of a process to "ascertain that the complainant was consenting". In the context of the entire charge, the jury would not have thought that this reference to an "inquiry" was anything more than a comment on the evidence. [ABCA decision @para 4]
Although the Court was unanimous with respect to the error committed by the trial judge only two of the three on the appellate panel held that the result would not necessarily have been the same had the jury been properly instructed. [ABCA decision @para 5]
In a brief two paragraph decision the Supreme Court of Canada agreed with the majority of the Court of Appeal:
[t]he sole issue before us is whether the trial judge's failure to instruct the jury on the need to take reasonable steps to ascertain consent might reasonably be thought to have had a material bearing on the acquittal. A majority of the Alberta Court of Appeal found that it did. We agree. [ABCA decision @para 1]
An additional interesting aspect to this case is that the jury was provided with a detailed decision tree. When the jury delivered their verdict the foreperson was asked to read out the jury’s answers to the four questions set out in the decision tree. The Court of Appeal held that it was not appropriate to have made the jury provide those answers in open court- the tree is meant merely as an internal decision making aid.
Jury secrecy is a central principle of our criminal trial system, and no one is entitled to inquire into the reasoning processes of the jury: R. v. Pan, 2001 SCC 42 (S.C.C.) at para. 4,  2 S.C.R. 344 (S.C.C.). A jury should not be called upon to disclose any part of its reasoning, only its ultimate verdict; the only decision that emerges from jury deliberations in a criminal trial is "guilty" or "not guilty". There is no justification in a criminal case to ask the jury to answer questions or to particularize the basis of the verdict: R. v. Tuckey (1985), 20 C.C.C. (3d) 502 (Ont. C.A.) at p. 513, (1985), 9 O.A.C. 218 (Ont. C.A.). The jury must be unanimous on the ultimate verdict, but jurors can reach their individual conclusions by different routes: R. v. Thatcher,  1 S.C.R. 652 (S.C.C.) at pp. 698-9. The approach followed in this trial was inappropriate. [ABCA decision @para 7]
The air of reality test applies to every defence and in this case there trial judge was correct to leave the defence with the jury. However, having left the defence with the jury it was incumbent on the trial judge to charge them adequately in all aspects of that defence. There are circumstances where it is necessary for the accused to take positive steps to ascertain consent and this was such a case. As the Manitoba Court of Appeal held in Malcolm, 2000 MBCA 77, 2007 CarswellMan 396 (CA); leave to appeal dismissed 2001 CarswellMan 14 (SCC):
Parliament introduced s. 273.2(b) to address those situations which may well be few in number but which may arise when the accused's conduct does not amount to recklessness or wilful blindness as to consent, but when the circumstances preceding the sexual activity call out for the accused to take positive steps to assure himself that the complainant is knowingly consenting to that activity. The case at bar is surely such a circumstance. After a night of partying and drinking, without any invitation to so do, the accused entered the complainant's bedroom while she was sleeping, knowing that she was married to a close friend. He did not engage in any conversation with her. He states that by her conduct, he believed she wanted to have sexual intercourse with him. Surely in such a situation, the court must be satisfied that the accused took reasonable steps to ascertain that the complainant was consenting to that sexual activity. [@para 36]