New & Notable: Looking for Consent in all the Wrong Places

Lay over at Pearson...good chance to blog since I haven't for a week.  The recent case of R v Dippel, 2011 ABCA 129 is worthy of note - and provides a good introduction to my next blog on the recent ruling by the Supreme Court in R v JA, 2011 SCC 28.  
Alan Dippel, the respondent, was in attendance at his daughter's party at his house.  Also in attendance was a friend of his daughter, the complainant who was 24 years old.  The complainant, who was planning on staying over, had consumed some alcohol before going to the party and had a few drinks at the party; she was tired and decided to go to bed early.  She went to a bedroom, fully clothed, and laid down to sleep. 
The respondent was drinking that night as well.  He was described by those at the party as conducting himself in a "vulgar and outrageous" manner; he was intoxicated and propositioning anyone who would listen [para 3].  The Court of Appeal noted that it was "obvious that no one at the party, still conscious and alert, had any interest in reciprocating his overtures" [para 3].
Ultimately the respondent made his way to the bedroom where the complainant was fast asleep. He testified that he entered the room, laid down on the bed and fell asleep. When he awoke he turned over and cuddled up to the person beside him. The respondent then decided to start touching her "back and buttocks" trying to get some acknowledgement.  The respondent testified that when she "kind of snuggled back into me" he decided to fondle her breasts.  The respondent then claimed that the complainant raised her arm, which he took as an indication that "[s]he was giving me the green light" - although she had not uttered a single word. Thereafter, her pants were removed and he digitally penetrated her” [para 4].
The encounter ended when the complainant awoke to find she was being penetrated; she jumped from the bed and said "who are you".  She then pulled her pants up and ran out of the room [para 5].
At trial the respondent argued that complainant had consented or, in the alternative, he was honestly mistaken that she had. The trial judge found that the testimony of the respondent, with respect to his mistaken belief as to the complainant’s consent, raised a reasonable doubt and acquitted him.  The Crown appealed.
The Court of Appeal granted the Crown appeal and substituted a verdict of guilt; the court found error with the trial judge’s “understanding and application of the defence of mistaken belief” [para 28].
In dealing with the defence of mistaken belief as to consent the CA explored the premise for the accused so-called mistaken belief, namely that his belief was based on the complainant’s body movements. In rejecting this the court held that:
…ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The respondent's own evidence acknowledges that he advanced the sexual contact based solely on the complainant's passivity; in other words, her lack of resistance and failure to object [para 18].
The Court went on to explain what the nature of this particular situation required.
Further, this is one of those situations that required an unequivocal communication of consent. The fact that the individuals were complete strangers and she was asleep at the time, would require a reasonable person in the respondent's position to clearly ascertain that the complainant was consenting to engage in sexual contact with him: R. v. Crangle, 2010 ONCA 451, 266 O.A.C. 299, leave to appeal to SCC refused: 33768 (December 23, 2010). The observations of Abella J.A. (as she then was), in R. v. Osvath (1996), 46 C.R. (4th) 124 at para. 29, 87 O.A.C. 274 (C.A.), a case factually very similar to the case at bar, are also apposite:
Anyone seeking sexual activity in these circumstances could hardly fail to know that he was obliged, at a minimum, to let the person from whom permission for such activity was sought, know who was seeking the consent. Consent is not given or refused in a vacuum - it is given or refused to a particular activity with a particular individual [emphasis added by Alberta Court of Appeal].
In the circumstances of this case, the court noted, the failure to have taken any such precautions must result in the defence mistaken belief being beyond the reach of the accused. [para 25]
The Court also made some apt comments on who bears the onus with respect to ascertaining consent.
Before concluding, we wish to make one further observation. In her Reasons for Judgment, the trial judge distinguished some of the cases considered by her because the complainants in those cases had "made it clear through previous communications that they were not interested in any sexual contact." With respect, that misplaced the legal responsibilities of the parties and distorts the law. To engage the protection of the criminal law, the complainant was not obliged to make a pre-emptive announcement before retiring to sleep that she did not wish to engage in sexual activity with anyone in the house. Like everyone else, she was entitled to sleep in an unsecured bedroom without fear of molestation. The onus fell on the respondent to take real steps that met the reasonable steps threshold to ensure that the complainant voluntarily agreed to engage in sexual activity with him. He failed to do so [para 26].
Of note this decision was penned before the recent SCC case of R v JA, 2011 SCC 28.  The court acknowledged this with the following notable conclusion:
Since preparing the foregoing, the Supreme Court has released its decision in R. v. J.A., 2011 SCC 28 (CanLII), which confirms our conclusion that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act: see paras. 36 and 42 [para 27].

DG Mack