Tension between the liberal principles and equality rights

Pappajohn (1980)

Liberal principles

• affirmed the subjective mens rea test (you shouldn’t go to jail for sexual assault unless you had a guilty mind) ,

• a defendant could be acquitted if they had an honest but unreasonable belief that the victim consented as they lacked the required guilty mind

Equality rights

• This ruling was fiercely criticized because it basically said the man's unreasonable mistake was more important than the woman's actual right to say "no" (bodily autonomy).

• The law protected the man who made the mistake while minimizing the harm done to the woman who was actually violated.

R v. Sansregret (1985)

Lp

The court started by repeating the same rule from Pappajohn:

• If the man (D) was charged because he was reckless or just knew there was a risk of no consent, he could still walk free.

• Why? Because if he convinced the court he had an honest (even if foolish) belief that the woman (V) consented, he didn't have the necessary "guilty mind" (mens rea).

Equality rights

This was the start of the pushback, trying to introduce accountability for the accused.

• The New Rule: The court introduced the idea of "Wilful Blindness."

• What it means: If the man suspected the woman wasn't consenting but deliberately chose to ignore the clear signs and did nothing to check, he could still be found guilty.

• The Impact: He couldn't just say, "I made an honest mistake." If he deliberately chose to be blind to the truth, the court treated that as being as bad as knowing the truth.

R v. park

Lp

The court doubled down on the idea that the accused's mental state was what mattered most.

• What it meant: Just like before, a man could be found not guilty if he sincerely, honestly believed the woman consented, even if that belief was ridiculously unreasonable.

• The Focus: The law kept the standard highly subjective, meaning they cared about what the man actually thought, not what a reasonable person should have thought.

Equality rights

This side argued that the defense was too easy to use, and they finally succeeded in placing a small check on it.

• The Argument: A man shouldn't just be able to say he made an honest mistake. There must be some proof that this mistake was possible.

• The New Rule: The "Air of Reality" Test.

  • The accused's claim of mistaken belief could only be used in court if there was at least some realistic foundation for it in the evidence.

  • The claim had to have an "air of reality"—it couldn't be purely invented or completely impossible based on the facts of the case.

R v. Ewanchuk

Liberal Principle (LP): Still Focused on the Mind

The court still technically agreed that the prosecutor had to prove the accused man (D) intended to commit a crime (had the "guilty mind," or mens rea).

• The Problem: This still kept the focus, in theory, on what the accused was thinking.

Equality rights

The court's ruling completely changed the way "consent" was defined, which made the "honest mistake" defense much harder to use.

• The New Rule: The court established the Affirmative Consent standard. This means:

  • Consent must be clearly communicated. The victim must actively say "yes" or communicate agreement.

  • Silence, passivity, or assumption is NOT consent. Just being quiet or not fighting back is not enough.

• The Impact: This was huge! The law now shifted the responsibility entirely to the accused to make sure they got a clear "yes." If the accused couldn't prove the victim actively agreed, they couldn't claim they made an honest mistake.

R v. J.A

Lp

The judges who disagreed (the Dissent) felt the Majority went too far in protecting the victim.

• The Argument: They were worried that the new rule made the definition of consent too strict and unrealistic.

• The Fear: They feared that requiring such "strict proof" of consent would eventually harm the basic LP rule: that the accused must have a guilty mind to be convicted.

Equality rights

Equality Rights (E): The Majority's Rule

The judges who won (the Majority) focused entirely on the victim's rights.

• The Focus: They ruled that the law must be highly protective of the victim's sexual autonomy, especially when the victim is incapacitated (unable to say "yes" or "no," like when they are extremely drunk or asleep).

• The Priority: The Majority stated that the victim's right to control their own body is the most important thing. If the person cannot consent (is incapacitated), the act is an assault.

R v. Daviault

Lp

The court allowed a new, extreme version of the criminal defense.

• The Argument: The accused man (D) claimed he was so extremely intoxicated that he wasn't even aware he was moving his body or committing the crime.

• The Ruling: The court agreed, ruling that if a person is intoxicated to the point that the act itself is involuntary (it negates the guilty act, or actus reus), they could be found not guilty.

In Short: The court essentially said a man could argue, "I was too drunk to even know I was moving my own body," and use that to get out of a sexual assault conviction.

Equality rights

This ruling was a major setback for victim protection and rights.

• The Problem: The court's decision meant that a person could avoid conviction for an act of sexual violence simply because they chose to get extremely drunk.

• The Conflict: This directly violated the goal of protecting women's safety and autonomy by providing a legal excuse for an act of violence.

• The Correction: The public outrage and legal criticism were so intense that the Canadian Parliament quickly stepped in to pass a law to fix this problem, and the Supreme Court later reinforced the correction in the Brown (2022) case.