Sansregret v. R. [1985] 1 S.C.R. 570 is a leading Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 case on the requirements and defence for the criminal charge of rape

Rape

Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...

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Background

The appellant and the complainant lived together. Their relationship had been one of contention and discord with violence on the part of the appellant: "slappings" or "roughing up" in his description, "blows" in hers. On September 23, 1982, the complainant decided to end their relationship. A few days later the appellant became furious and attacked the complainant with a file-like object. The complainant managed to calm him down by holding out hope of some sort of reconciliation and engaging in intercourse with the appellant. The complainant reported the incident to the police, but no charges were laid. On October 15, 1982, the appellant again broke into the complainant's house. The appellant picked up a butcher knife

Butcher knife

A butcher knife is a knife designed and used primarily for the butchering and/or dressing of animals.During the late 18th century to mid 1840s, the butcher knife was a key tool for mountain men. Simple, useful and cheap to produce, they were used for everything from skinning beaver, cutting food,...

and entered the complainant's bedroom. The complainant, fearful for her life, again tried to calm down the appellant by pretending that there was some hope of reconciliation. They engaged in intercourse shortly later, but the complainant stated that she engaged in intercourse only to prevent further violence by the appellant. She later filed charges against the appellant for rape.

Mistake of Fact

The trial judge found that the appellant was not guilty of rape as defined in (then) s.143(a). Following the decision in R v. Pappajohn [1980] 2 S.C.R. 120 a mistake of fact defense would be allowed for rape when there was an honest belief in that fact, regardless of the reasonableness of that belief. In this case, even though the trial judge did not believe that the appellants belief in consent was even remotely reasonable, she did find that it was honest: "As I said, no rational person could have been under any honest mistake of fact. However, people have an uncanny ability to blind themselves to much that they do not want to see, and to believe in the existence of facts as they would wish them to be."

Reasons of the court

McIntyre, for the majority of the supreme court, entered a conviction on the basis that even if the accused was not subjectively aware that there was no consent, he was wilfully blind to the lack of consent. The culpability of wilful blindness is the accused’s refusal to inquire whether the complainant was consenting, when he was aware of the need for some inquiry, but decided not to inquire because he did not want to know the truth. Because the appellant was willfully blind to the consent of the complainant, the defense of mistake of fact cannot apply.

An annotation by A. Mason criticizes McIntyres decision pointing out that the Supreme Court only has jurisdiction to hear issues of law. Since the trial judge found as a matter of fact that the appellant held the honest belief that consent had been freely given, a finding that the appellant was willfully blind to whether consent had been given involved a judgement on an issue of fact.

However Manson's curious criticsm ignores the express content of the Supreme Court's decision , as the following shows: McIntyre, after discussing the criminal law application of recklessness with respect to mens rea, quotes the trial judge:

Then the trial judge continued (at pp. 167‑68):

As I said, no rational person could have been under any honest mistake of fact. However, people have an uncanny ability to blind themselves to much that they do not want to see, and to believe in the existence of facts as they would wish them to be. ....The facts in Pappajohn v. R., [1980] 2 S.C.R. 120,...are quite dissimilar to those in this case. The dictum of the Supreme Court of Canada, however, is clear and broad and in no way seems to limit itself to the peculiar circumstances of that case. Perhaps the Crown will appeal this decision to obtain some direction from the Supreme Court on whether it was that court's intention to cover situations where an accused who demonstrates the clarity and shrewdness this accused showed in securing his own safety at the outset can turn around and, because it does not suit his wishes, can go wilfully blind to the obvious shortly thereafter. In any event, the ratio of Pappajohn is clear and it leaves me no alternative but to acquit. [Emphasis added]

McIntyre then goes on to apply the earlier precedents on the implications of recklessness to mens rea in the specific case, explicitly noting the trial judge's findings of fact:

20. It is evident that the trial judge would have convicted the appellant of rape had it not been for the defence of mistake of fact. She considered that the belief in the consent expressed by the appellant was an honest one and therefore on the basis of Pappajohn, even if it were unreasonably held, as it is clear she thought it was, he was entitled to his acquittal. This application of the defence of mistake of fact would be supportable were it not for the fact that the trial judge found in addition that the appellant had been wilfully blind to reality in his behaviour on October 15. Such a finding would preclude the application of the defence and lead to a different result. It is my opinion then that the trial judge erred in this matter in that though she made the requisite findings of fact that the appellant was wilfully blind to the consequences of his acts she did not apply them according to law [Emphasis added].

It is noteworthy that the trial judge herself seemed to invite such a clarification of law in her decision as quoted above.