No, thinking you are allowed to have sex with your wife without her consent is not a defence!

The news medias have been quite abuzz this week, with headlines such as “Ottawa man not guilty of sexual assault because he thought he could have sex with wife anytime“.  Unfortunately, the headlines do not reflect the reality of the decision: nowhere in the judges’ reasons does he ever even come close to saying that the acquittal was “because [the accused] thought he could have sex with wife anytime”.

The case is R. v. H.E., 2017 ONSC 4277, a decision of the Honourable Mr. Justice Robert J. Smith of the Ontario Superior Court of Justice released 17 October 2017 after a five-day trial held in June 2017. Mr. E. was charged with one count of sexual assault on his wife, Z., one count of assault on his daughter, R., and one count of uttering threats to his daughter that he would kill her.

It is not clear when the incident with the daughter were alleged to have taken place, but it was at least 4 years before the trial. The acquittal on those two charges is uncontroversial — there were a number of differing accounts among the Crown’s own witnesses, and the judge found that while R. was being honest, she was not reliable, and he could not find beyond a reasonable doubt that the assault had occurred or that the threats had been uttered.

The incident giving rise to the sexual assault charge took place in 2002, some 15 years before the trial. The trial judge, in reviewing the evidence, found Z. to be credible, and found Mr. E. to be argumentative and evasive. His Lordship did not believe Mr. E.’s evidence, and found that his evidence did not raise a reasonable doubt.

The key factual finding is at paragraph 16 of the decision: “I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so.”

Sexual assault is a general-intent offence–meaning that the Crown need not prove any specific intent and can rely on the presumption that a person intends the natural consequences of his or her actions. For general intent offences, about the only way the mental element (the Latin term is “mens rea” meaning a “guilty mind”) is ever in issue is automatism, mental disease or disorder, intoxication (though not self-induced intoxication), or accident, and none of these were at play here. Despite this, at paragraph 17, Justice Smith finds “I am not satisfied that the Crown has met its burden of proving beyond a reasonable doubt based on all of the evidence that the accused had the required mens rea to have sexually assaulted the complainant in 2002.”

In my view, Justice Smith made one of two legal errors here. The first possibility is that he failed to provide proper reasons for why he found that the Crown had not proven the mental element of the offence (the “mens rea” or “guilty mind”, i.e. the criminal intent) since that finding in paragraph 17 comes out of nowhere and is not explained anywhere (and is frankly at odds with the factual findings, particularly the one in paragraph 16). Failure to provide proper reasons for a legal holding is an error of law which can result in a verdict being overturned by an appellate court.

The second possibility is more worrisome, and is the assumption behind the headlines: that Justice Smith erred in law by finding that the husband’s mistake of law that he could have sex with his wife without her consent was somehow a defence or invalidated his mens rea. A mistake of law is not a defence, and all that the Crown was required to prove was that Mr. E. intentionally had sex with his wife while knowing she was not consenting; whether or not he thought he had the right to do so was not legally relevant.

This will most likely be appealed by the Crown, and I predict they will be successful on the appeal. What is an open question is whether the Court of Appeal will substitute a conviction or send it back for a retrial. They will be urged by the Crown and be sorely tempted to substitute a conviction. The reason I’m hedging on this is the critical use of the word “probably” in paragraph 16 of the decision: “probably” isn’t good enough for criminal law. On the other hand, the rest of the reasons make it pretty clear that the judge made the necessary factual findings for a conviction, so there is enough there to substitute a conviction on appeal (which is a very rare event since the normal remedy for a successful appeal of an acquittal is a new trial). Time will tell what will happen.

Leave a Reply

Your email address will not be published. Required fields are marked *