A series of split decisions of the SCC has led to the entrenchment of the air of reality test
R. v. Davis (1999) SCC
Photographer represented to numerous young girls that he was with a modelling agency, took sexually explicit photos of them and told them that he would show the pictures to their parents of they refused to have sex with him. It is necessary to consider the totality of the evidence. Judges should avoid using the air of reality test to weigh evidence because this only serves to usurp the role of the trier of fact. Even where the stories are polar opposites, there can be an air of reality if portions of the conflicting stories can reasonably be spliced together.
Constitutionality of CC273.1:
This section prevents a complainant’s sexual history from being used for improper purposes. Darrach claimed that the unavailability of this information precluded him of his s.7 right to make full answer or defense and s.11d to have a fair trial. The scope of this section only focuses on precluding attacks on the credibility of a witness because of her past sexual experience. To allow this would be to make some women unrapeable. This case also found that the stigma attached to sexual assault makes it necessary for the subjective test for mens rea to apply.
MISTAKE
Mistake of Fact and Mistake of Law differ under CC19. Mistake relates to the mens rea.
Mistake of Fact: occurs when the accused is mistaken in his belief that facts exist when they don’t or that they don’t exist when they do. Fact: something perceptible by the senses. The test for mistake of fact is subjective meaning that one can have an honest but not necessarily reasonable mistake.
MISTAKE OF FACT
Mistake of fact negates intention rather than affirms a positive defense. It is available to an accused that acts innocently with a flawed view of the facts but nonetheless commits actus reus. It is a defense in that it is an issue raised by the accused. The Crown rarely has knowledge of subjective factors that may have caused the accused to entertain a belief in a false set of facts.
1. Where there is subjective mens rea – the mistake need merely be honestly held with reasonableness only relevant to assessment of credibility.
2. Where the fault element requires objective negligence – the mistake must be honest and reasonable.
3. Where fault is based on absolute liability – mistake is no defence.
R. v. Hess; R. v. Nguyen (1990) SCC
This case assessed whether the defense of mistake of fact could be used regarding discovery of the age of the victim in a statutory rape case under CC146.1, which carried a possible life sentence. They claimed this part of the CC, through its express exclusion of the mistake of fact defense, violated s.7. There was a valid legislative objective (prevent young girls from getting pregnant), there was a rational nexus but no proportionality. Therefore, it could not be saved by s.1 – possible for a morally innocent person to be imprisoned for life. Under CC151.4, it is necessary to take all reasonable steps to ascertain age. That this defense was expressly precluded in CC146.1 made statutory rape an absolute liability offence, which offended s.7. In dissent, McLauchlin stated that absolute liability was okay in this case because the alternatives of a due diligence or reasonable belief defense would not provide an effective deterrent.
NATURE OF THE MISTAKE
R. v. Ladue (1965) Yukon CA
The accused was convicted of indecently interfering with a dead human body. The appeal argued that the accused did not know the person was dead therefore had no knowledge that the act committed was on a dead body. The appeal was dismissed because even though the accused did not know that the woman was dead his act could not be done innocently. Had the woman been alive, the accused would have been committing rape (no consent). Knowledge that a body was dead was not a specific ingredient of an offence against CC167.b. All that was required was mens rea in the widest sense. Strangely, L was convicted of an offence different from the one he was charged with, which contravenes the Beaver approach that one must have a consideration of the true essence of the offence.
R. v. Kundeus (1976) SCC
Accused was asked for LSD by an undercover officer and said he didn’t have any but had Mescaline. In fact, the two capsules sold were LSD, even though both parties believed the subject of the transaction was Mescaline. This case didn’t follow Beaver, which involved confusion between sugar and drugs rather than two types of drugs. Mistake was regarding two types of illegal drugs. Laskin J dissented because Mescaline carried a lesser charge than LSD – K only had mens rea for the less penal drug.
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