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Case Name:

R. v. R.V.
Between Her Majesty the Queen, and R.V. [2001] O.J. No. 5143 52 W.C.B. (2d) 191 Court File No. Burlington 00-8962-00 Ontario Court of Justice Wolder J. Heard: August 28 and November 21, 2001. Judgment: December 14, 2001.
(20 paras.) Criminal law -- Mens rea or intention -- Mistake of fact -- Sexual offences, rape or sexual assault -- Consent and extorted consent -- Defences, mistake of fact -- Evidence and proof. Trial of RV on two charges of sexual assault against his wife of 12 years. RV raised the defence of honest but mistaken belief in consent of his wife to the sexual activity. RV and his wife were having marital difficulties but were still living in the same house and had not formed an intention to separate. At the time of the alleged assaults they were sleeping in different rooms but otherwise carried on a relatively normal marital relationship. On the night of the first incident RV undressed, got into bed with TV and initiated sexual conduct. TV pushed him away and told him no. They went out for dinner and had a pleasant evening and upon their return were feeling quite positive towards each other. RV again made sexual advances. TV again said no but RV continued to kiss and fondle her. Eventually he gave up and left the bed. The next day they visited TV's mother. When they returned home RV invited TV into his bed but she declined. When TV awoke the next morning RV was in bed with her. She agreed to let him hold her. RV started caressing TV and attempted to pull down her pyjama pants. She pulled them back up. RV continued to try to persuade her and tried to get on top of her. He eventually gave up without having sex. TV made a complaint to the police and RV was charged. He argued that although TV was rejecting his advances through words, her conduct led him to an honest belief that she was consenting. HELD: RV was found not guilty on both counts. When parties get married, they, by the very nature of the relationship, are consenting to engaging in sexual intercourse. Although TV and RV's relationship was strained, it was still a viable and ongoing marriage. It was not enough for the Crown to simply prove that the sexual conduct took place without TV's consent. The Crown failed to prove beyond a reasonable doubt that RV's conduct was subjectively outside the norms of tolerated sexual behaviour in their marriage. It was not proven that RV knew or ought to have known that this occasion

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was different and when TV said no through words and gestures, she meant no. RV did not at any time force actual sexual intercourse. He understood the limits in their sexual relationship and did not exceed those limits. Within the confines of a viable marriage it was difficult to reject RV's defence of honest but mistaken belief that TV was consenting. There was a distinct air of reality to RV's interpretation of his wife's behaviour. RV was entitled to be acquitted of the charges. Counsel: Mary Ward and Monica MacKenzie-Bolle, for the Crown. Wendy Oughtred, for the defendant.

1 WOLDER J.:-- R.V. stands charged with sexually assaulting his wife of twelve years on two occasions on the weekend of November 10-12, 2000. The accused raises the defence of honest but mistaken belief in consent of his wife to the sexual activity. This case raises the questions of what limits Parliament has imposed upon a husband and wife within a marriage when engaging in sexual activity. It requires this court to consider at what point in a marriage, acceptable sexual interplay ends and criminal conduct begins. FACTS 2 The facts in this case are not greatly in dispute. The accused R.V. and his wife M.F.V. also known as T.V. had been living together for 13 years and at the time of these charges had been married for 12 years. There are no children of this relationship. 3 Like in many marriages, the accused and his wife had been experiencing some difficulty and stresses in their marriage. T.V. described her marriage as a troubled marriage, which had its normal ups and downs for the first nine years. She claims that she and her husband had been having communication problems in the last few years which were not getting any better. 4 Approximately three weeks prior to the weekend in question, the accused and his wife had quarrelled about the accused having been invited out by his friend to watch the Michael Tyson heavy-weight boxing fight on television. As a result, the accused decided to sleep in the spare bedroom while his wife continued to sleep in the master bedroom. However, they were still living in the same house and had not formed an intent to separate. While Mrs. T.V. had been thinking about leaving her husband and had gone as far as to see a counsellor and a family law lawyer, she at no time communicated this to her husband. Accordingly, other than sleeping in separate beds, they were still carrying on a relatively normal marital relationship. Both Mr. R.V. and Mrs. T.V. were gainfully employed during the daytime hours. Outside of work, they carried on a relatively normal social relationship, which included visiting with and having dinner with their respective parents, going out for dinner and attending social functions such as weddings. 5 Part of T.V.'s unhappiness stems from her suspicion that the respondent was having an affair with her cousin. Although R.V. had consistently assured T.V. that her suspicions were unfounded, those suspicions continued to affect her state of mind. Her suspicions were reinforced by the way T.V. believed her cousin was looking at R.V. at a recent family wedding. While other family members were aware of T.V.'s suspicions, they were not convinced that such suspicions were justified. 6 T.V.'s birthday was on Saturday, November 11, 2000. As a surprise for her birthday, R.V. arranged to take his wife out to Nashville North for dinner and entertainment on Friday, November 10th. He put a birthday card with the information about the dinner arrangement in T.V.'s lunch box. Unfortunately, T.V. had not opened her card during lunch on November 10th and was not aware of the dinner arrangement. She came home before R.V. She felt tired and

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unwell and decided to go to bed. When R.V. came home from work, he expected his wife to be getting prepared to go out for dinner. Instead, he found her in bed. When he questioned T.V. why she wasn't ready to go to Nashville North, she indicated that she was not aware of the arrangement, had not opened the card in her lunch box and that she was not feeling well and didn't want to go. R.V. suggested that she take a shower to help make her feel better, whereupon T.V. responded that she didn't want to. R.V. then took his clothes off and got into bed with T.V. R.V. indicated that he wanted to celebrate T.V.'s birthday by having sex, whereupon, she again stated that she didn't want to because she was not feeling well and she was feeling cold. R.V. persisted and continued to come on to T.V. and T.V. resisted by pushing him away. R.V. tried to get on top of T.V. but T.V. continued to resist and threw him off. At the time, T.V.'s large dog was also in the bed and as a result of the commotion, came in between T.V. and R.V. Eventually, R.V. gave up trying to have sexual relations with his wife, got out of bed and left the room. He then returned to the room and suggested that T.V. have a shower so they could go out for dinner. 7 T.V. and R.V. then had a pleasant evening. They had a good dinner over which they had a good discussion about the state of their relationship. T.V. and R.V. had two drinks over dinner plus some wine. After completing dinner, T.V. and R.V. went to T.V.'s mothers home. It is clear from the evidence that when the parties returned home by about 11:00 p.m., they were feeling quite mellow and positive towards each other. While T.V. was in the bathroom, R.V. came in and held her around the waist with his arms and pulled her towards him. He then suggested that they go to bed together, whereupon T.V. declined. T.V. got into bed and covered herself up with the sheet. R.V. would not be deterred and got into bed with T.V. and began to fondle T.V.'s breasts and tried to pull down T.V.'s underwear. He then got on top of her. T.V. then said that she didn't want to have sex but R.V. continued to try to persuade her that they should. He continued to kiss and fondle T.V. while T.V. tried to push him away. T.V. became upset with R.V.'s persistence and started raising her voice, whereupon T.V.'s dog, who once again was in the room, jumped in between them. At that stage, R.V. was extremely frustrated and forcefully turned T.V. over and held her by the chin area. R.V. claims that he was frustrated and angry and turned T.V. over to talk to her. T.V. thought that R.V. was being unnecessarily aggressive. However, when the dog jumped in between T.V. and R.V., R.V. got out of bed and left the room stating to T.V., "If you want a divorce, you can have one". Once again, the parties did not actually have any sexual relations. 8 The following day, November 11th, was T.V.'s birthday. T.V. didn't get up until noon. In the afternoon, R.V. and T.V. went to T.V.'s mother's home for dinner in celebration of T.V.'s birthday. R.V. had resisted going over initially, but was persuaded to come over by T.V.'s sister and her husband. The visit at T.V.'s mother's home was otherwise uneventful. When they came home, each went into their separate bedrooms. R.V. invited T.V. into his bed. However, by the time T.V. was ready to go to bed, R.V. had fallen asleep and T.V. decided that she didn't want to accept R.V.'s invitation. However, at seven o'clock Sunday morning, November 12th, when T.V. woke up she found R.V. in bed with her. At the time, T.V. was wearing her pyjamas, consisting of pyjama pants and a long sleeved top. T.V. asked R.V. what he was doing there, whereupon he responded that he just wanted to hold her. T.V. agreed and then R.V. put his arms around her and continued to hold her for a period of time. Thereafter R.V. started caressing T.V. and eventually started to attempt to pull down her pyjama pants whereupon she pulled them back up. R.V. then tried to persuade her, suggesting that she did want to have sex, however T.V. said that she didn't want to. R.V. continued to attempt to persuade her by indicating that they hadn't had sex for quite a while and that it was time and T.V. continued to insist that she didn't want to. All this time T.V.'s dog was, again, in bed with the parties. R.V. continued to persist and tried to get on top of T.V. whereupon T.V. told R.V. to leave in a loud voice. This, again, upset the dog who jumped in between them and this time the dog scratched T.V. Eventually, R.V. got out of bed and went downstairs followed by the dog. Again, the parties did not have any sexual intercourse at that time. When leaving the room, R.V. suggested to T.V. that she was not acting normally and was crazy. R.V. then went downstairs and made coffee. He later returned to the room whereupon he grabbed the sheet causing his hand to come into contact with T.V.'s breasts. T.V. acknowledges that R.V.'s touching her breasts at that time may have been accidental. However, T.V. was becoming so concerned about R.V.'s persistence that she decided to take action by going to the police station and reporting what R.V. did. As a result, R.V. was charged with sexually assaulting T.V. POSITION OF THE DEFENCE AND OF THE CROWN

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9 R.V. acknowledges that while T.V., through words, indicated that she was rejecting R.V.'s sexual advances, that through her conduct and words he formed an honest belief that she was consenting to his sexual advances, notwithstanding that such belief may have been mistaken. The Crown submits that T.V.'s words were clear and that R.V.'s persistent sexual advances constituted unlawful touching for a sexual purpose and therefore R.V. should be found guilty of sexually assaulting his wife. THE LAW 10 By its very nature, a marriage is a sexual relationship. The law still remains that unless a marriage is consummated, it may be annulled or it may be declared null and void. Therefore, when parties get married, they, by the very nature of the relationship, are consenting to engaging in sexual intercourse and consummating the marriage. Even after consummation, a marriage continues to imply that parties have joined together for various purposes including that of retaining or continuing their sexual relationship. A husband and wife's sexual relationship is just one means through which they communicate in the marriage. 11 The manner in which husbands and wives communicate sexually in the marriage relationship may vary from couple to couple. Some couples may be very passive in the manner in which they relate sexually whereas others may be very aggressive. There is no evidence before this court as to the acceptable norms or parameters of sexual dialogue within the confines of a marriage. 12 In the case before me, I find that although T.V. and R.V.'s relationship was strained, and even though they may have been sharing separate bedrooms, their marriage was still a viable marriage and an ongoing marriage relationship. While T.V. may have been thinking about withdrawing from the marriage relationship at a future time by having seen a marriage counsellor and by having spoken to a family law lawyer, at no time had she communicated this to R.V. Therefore, at all times T.V. continued to reside in the matrimonial home with R.V., though in different rooms, on the understanding that the parties were having some disputes which needed to be worked out within that marital relationship. In that sense, R.V. and T.V. were no different from many couples who may have disagreements during their marriage and who may not be happy with each other from time to time, but who are still committed to the marriage relationship and who will continue to work out the difficulties within the parameters of that marriage relationship. 13 The Crown asks this court to accept that R.V.'s conduct went beyond the boundaries of what should be expected or tolerated in a normal marital relationship and that therefore, when R.V. continued to persist and attempted to persuade T.V. to have sexual intercourse with him, that he did so without her stated consent and therefore sexually assaulted T.V. 14 I am of the view that were a viable marital relationship exists, then it is not enough for the Crown to simply prove that the sexual conduct took place without the stated consent of the other party in order to secure a conviction for sexual assault by one marital partner against the other. It is my view that, within the confines of a viable marriage, the Crown must prove beyond a reasonable doubt that the conduct of the accused was subjectively outside the norms of tolerated sexual behaviour in that particular couple's sexual relationship within their marriage. In other words, it is my view that the Crown must establish not that the complainant said "no" on that particular occasion, but that in the context of the parties entire marital relationship, and in the context of that particular situation, her saying "no" differed from the way they historically interacted for a sexual purpose and that the accused, thereby, should have known from such different behaviour that her "no" or her rejection of the accused's advances in fact was different from the way the parties interacted sexually in the past. Therefore, within the confines of a viable marital relationship, when the accused claims that he had an honest, but mistaken belief that the complainant was consenting to the sexual activities notwithstanding the ordinary meaning of the complainant's words, it is difficult for this court to reject that defence unless the Crown proves beyond a reasonable doubt that the way the parties were engaging sexually on November 10th and 12th, 2000 was different from the way the parties communicated for sexual purposes at other times throughout their marriage when consent was not withheld. Therefore, the Crown must prove that the accused knew or should have known, that this occasion was different and when the complainant said "no", through words and gestures, she meant "no". In this case, R.V. claims that while he acknowledges that his wife was resisting his sexual advances, that through her tone and

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conduct, he understood that she was consenting to his advances. The fact that T.V. agreed to R.V. remaining in her bed to allow him to warm her up when she was feeling cold, was taken by R.V. as consent in that it was a cue that T.V. was in fact being receptive to his sexual advances. The fact that R.V. did not at anytime force actual sexual intercourse after T.V. continued to resist is evidence that R.V. understood the limits in their sexual relationship and that he did not exceed those limits. 15 In Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481, Dickson J. (though dissenting in the result) stated: "Mistake is a defence ... where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in the fallacious set of facts." 16 In order to be successful in the defence of honest but mistaken belief, the court must be able to answer the question whether in all the circumstances of this case, is there an air of reality in the defence. In Laybourne, Bulmer and Illingworth v. The Queen (1987), 33 C.C.C. (3d) 385, McIntyre J. at pages 390 to 392 held that the absence or presence of an actual statement by the accused alleging mistaken belief is of limited significance to the determination of whether or not there exists any air of reality to that defence: "The question he must answer is this. In all the circumstances of this case, is there any reality in the defence? To answer this question, he must consider all the evidence, all the circumstances. The statement of the accused alleging a mistaken belief will be a factor, but will not by itself be decisive, and even in it's total absence, other circumstances might dictate the putting of the defence." [emphasis added] 17 I find that the accused's interpretation of his wife's behaviour on November 10th and 12th in the context of the parties' marital relationship during those days could reasonably have given him an honest belief that T.V. was consenting to his sexual advances, and therefore his defence of honest but mistaken belief has a distinct air of reality. 18 L'Heureux-Dube J. in Regina v. Park, 99 C.C.C. (3d) 1, addressed the communication gap between how most women experience consent and how many men perceive consent. She states at page 15: "Few would dispute that there is a clear communication gap between how most women experience consent, and how many men perceive consent. Some of this gap is attributable to genuine, often gender-based, miscommunication between the parties. Another portion of this gap, however, can be attributed to the myths and stereotypes that many men hold about consent. As Robin D. Wiener has observed in "shifting the Communication Burden: A Meaningful Consent Standard in Rape" (1983), 6 Harv. Women's L.J. 143 at p. 147: [A] gender gap in sexual communications exists. Men and women frequently misinterpret the intent of various dating behaviors and erotic play engaged in by their opposite-sexed partners." and at page 16: "In my view, the primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in. If this is the case, then our approach to consent must evolve accordingly, for it may be out of phase with that conceptualization of the law." In this respect, Lucinda Vandervort argues in "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987-88), 2 C.J.W.L. 233 at p. 267, that consent must be regarded from the

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standpoint of communication, rather than from the standpoint of a private mental state:

"The social act of consent consists of communication to another person, by means of verbal and non-verbal behaviour, of permission to perform one or more acts which that person would otherwise have a legal or non-legal obligation not to perform ... To consent is to waive a right and relieve another person of a correlative duty.

Acts performed in reliance on such a waiver do not breach any operative legal duty and do not constitute commission of an offence. It is thus clear that any analysis of consent must consider what, if anything, was actually communicated, as well as whether the communication was voluntary." And at page 17: "Non-consensual sexual touching is criminal unless, at the least, the accused honestly believes that consent has been communicated with respect to that touching. Thus, as a practical matter, the mens rea of the offence does not relate so much to the complainant's frame of mind as it does to the complainant's communication of that frame of mind and to the accused's perception of that communication. Furthermore, although consent may exist in the mind of the woman without being communicated in any form, it cannot be accepted by a reasonable finder of fact as having been honestly perceived by the accused without first identifying the behaviour that led the accused ostensibly to hold this perception. If the accused is unable to point to evidence tending to show that the complainant's consent was communicated, then he risks a jury concluding that he was aware of, or reckless or wilfully blind to, the complainant's absence of consent. Of course, passivity can, itself, under certain infrequent circumstances, be communicative in character: M.(M.L.), supra. By way of another example, evidence of past sexual behaviour between the parties might be relevant to the defence of mistake of [page 26] fact in instances where that behaviour may have influenced the accused's honest perception of the complainant's communication relating to the particular sexual activity in question." and at page 18: "In my view, finders of fact will benefit from focusing their attentions on communication, and honest perception of that communication, when determining whether the mens rea of the offence has been made out. Such an approach will enable them to separate more effectively the wheat from the chaff - the myth and the stereotype from the reality - in determining whether the accused was aware of the complainant's absence of consent, or whether he could have entertained an honest but mistaken belief as to her consent." 19 In conclusion, therefore, after considering the evidence of R.V., who I find to be a credible witness, and weighing it in the context of the emotional highs and lows of R.V. and T.V. during the weekend of November 10-12, 2000 and the fact that at the time, the parties were in a viable marital relationship, I find that R.V.'s claim that he honestly believed that T.V. was consenting to his sexual advances has a distinct air of reality and as a result, he is entitled to be acquitted of these charges. CONCLUSION 20 I have placed considerable weight on the fact that T.V. and R.V. were in a viable, though somewhat troubled, marital relationship and that the accused's defence of honest but mistaken belief and whether it has a distinct air of reality, must in part be weighed against that marital relationship. My decision may very well have been different had the

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evidence been that the parties were no longer in a viable marital relationship, either by virtue of the fact that the parties were then physically living separate and apart, or had formed the intent to live separate and apart, thereby inferring that the sexual relationship within the definition of that marriage had also terminated. Similarly, if the Crown had been able to establish that R.V.'s interpretation of his wife's conduct during that weekend could not reasonably have caused him to form an honest, though mistaken, belief of fact based upon the historical sexual relationship within the parties' marital relationship, or had he exceeded the limits placed upon such consent within these parties particular marital relationship, then the finding could also have been otherwise. However, in this case, since I am satisfied that the Crown has failed to discharge its burden beyond a reasonable doubt, I find R.V. not guilty on both counts. WOLDER J. cp/qi/e/nc/qlhcc