INTRODUCTION AND BRIEF DESCRIPTION
This section instructs a judge to inform the jury to consider whether there were reasonable grounds for an accuseds belief of consent in sexual assault cases.
SECTION WORDING
153.1(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
EXPLANATION
In Canada, consent is a critical component of any sexual offence charge. Section 153.1(6) of the Criminal Code allows an accused to submit a defence that they believed the complainant had given their consent to the sexual conduct at the centre of the charge. However, the burden is on the accused to provide evidence to support this defence. If the accused can provide sufficient proof, and a judge is convinced that the evidence would constitute a defence, the jury will then be instructed to consider the presence or absence of reasonable grounds for that belief. The section underscores the importance of consent in sexual encounters in Canada. While the criminal justice system has had a complicated relationship with sexual assault complainants over the years, this section acknowledges the responsibility of the accused actor in obtaining and respecting consent. By placing the burden of proof on the accused, the system ensures that testimony about consent is not used as an excuse for sexual misconduct. It reinforces the idea that consent cannot be assumed and must be actively sought and obtained at every stage of a sexual encounter. Under section 153.1(6), the jury must consider whether the accused had a reasonable expectation to believe that consent was given. While the section does not provide an explicit definition of reasonable grounds, it is understood to require that the accused has taken steps to obtain meaningful, informed consent. This might include asking for verbal or physical cues from the complainant, ensuring that they are not incapacitated, or stopping the encounter if they withdraw their consent at any point. Overall, section 153.1(6) serves to balance the interests of the accused with the need to maintain accountability for sexual misconduct. It protects victims by putting the onus on the accused to obtain and respect clear consent and provides a framework for assessing whether their behaviour met that expectation.
COMMENTARY
Section 153.1(6) of the Criminal Code of Canada is an important provision that deals with situations where an accused person claims that they believed that the complainant consented to the conduct that is the subject-matter of the charge. This provision acknowledges the fact that there can be situations where an accused person genuinely believed that they had consent to engage in sexual activity with the complainant, even though the complainant did not give their clear and explicit consent. It also recognizes that such a belief, if it is an honest one, should be taken into account when assessing the guilt or innocence of the accused. The provision requires the judge to instruct the jury to consider the presence or absence of reasonable grounds for the accused person's belief that the complainant had given their consent. This means that the jury must assess whether the accused person had a reasonable basis for believing that the complainant had given their consent, and whether their belief was honestly held. This assessment must be made in light of all the evidence that has been presented in the case, including the testimony of the complainant, the accused, and any other witnesses. One of the challenges of applying Section 153.1(6) is determining what constitutes a reasonable" belief in the circumstances. This will depend on a variety of factors, including the nature of the relationship between the accused and the complainant, the degree of physical and emotional intimacy between them, and any other relevant contextual factors. For example, if the accused and the complainant had a pre-existing relationship and had engaged in consensual sexual activity in the past, this might be seen as a reasonable basis for the accused to believe that the complainant had given their consent. Another challenge is ensuring that the jury understands the legal concept of consent and how it operates in cases of sexual assault. Under Canadian law, consent must be obtained freely and voluntarily, and must be clear and unambiguous. This means that a person cannot be deemed to have given their consent if they were coerced, threatened, or otherwise forced into engaging in sexual activity. It is therefore important that the jury be properly instructed on the definition of consent and how it operates in sexual assault cases. Overall, Section 153.1(6) strikes a balance between the interests of the accused and the complainant, by taking into account the accused's belief in their own innocence while respecting the complainant's right to bodily autonomy and sexual self-determination. However, it is important to remember that the mere belief of the accused is not enough to justify their actions if that belief was not reasonable. The jury must carefully consider all of the evidence to determine whether the accused had a genuine and reasonable belief in the complainant's consent, or whether they deliberately disregarded the complainant's lack of consent.
STRATEGY
Section 153.1(6) of the Criminal Code of Canada deals with a defense strategy in cases where the accused alleges that they believed the complainant had consented to the conduct that is the subject matter of the charge. This section is important because it shifts the burden of proof onto the accused to demonstrate that they had reasonable grounds to believe in the consent of the complainant. The defence must prove that the accused acted honestly and had a reasonable belief in consent. Some strategic considerations when dealing with this section of the Criminal Code of Canada include: 1. Gathering evidence: In order to successfully employ this defence, the accused must have sufficient evidence to support their claim that they had reasonable grounds to believe that the complainant had consented. This may include witness statements, emails, text messages, or any other type of evidence that can establish the accused's state of mind at the time of the alleged offence. 2. Preparing the accused: It is important to prepare the accused thoroughly and to ensure that they are aware of the legal requirements for this defence. This includes understanding the burden of proof and what evidence is necessary to establish the necessary elements of the offence. It may also be useful to coach the accused in how to present themselves in court to come across as credible and honest. 3. Jury selection: Choosing the right jury is important in any criminal case, but it is particularly important in cases where this defence is being employed. It may be beneficial to select a jury that is sympathetic to the accused or has a particular bias (such as a gender or cultural bias) that may make them more likely to believe the accused's version of events. 4. Cross-examining the complainant: In cases where this defence is being used, cross-examination of the complainant will be particularly important. It is important to question the complainant's version of events and to try to establish inconsistencies in their testimony that may cast doubt on their credibility. 5. Using expert evidence: Expert evidence may be useful in establishing that the accused's belief in consent was reasonable. For example, an expert in human behavior may be able to provide insight into the accused's state of mind at the time of the offence and whether their belief in consent was reasonable given the circumstances. In conclusion, when dealing with section 153.1(6) of the Criminal Code of Canada, it is important to carefully consider all the strategic options available to the defence. Gathering evidence, preparing the accused, selecting the right jury, cross-examining the complainant, and using expert evidence are all strategies that could be employed to successfully employ this defence. A skilled defence lawyer will carefully assess the circumstances of the case and develop a strategy that is tailored to the specific facts and legal requirements of the case.