Sexual consent lies at heart of new trial

A new trial has been ordered for an Ottawa man who won acquittal on sex assault charges based on his honest belief that he could have intercourse with his wife anytime.

The Court of Appeal for Ontario said the judge in the case committed a series of errors.

Ontario’s highest court said the husband, identified only as Mr. E., should not have been acquitted of sexual assault based on the belief — shared with his wife — that he could have sex with her whenever he wanted. Among other things, the court said, it was not the defence he presented.

“This was a credibility case in which Mr. E did not raise the honest, but mistaken belief in consent defence during the trial, and it should not have been considered,” the appeal court ruled.

What’s more, the court said, to avoid conviction based on an honest, but mistaken belief in consent, an accused person’s viewpoint must be grounded in a fact scenario that could give rise to lawful consent. That didn’t exist in the case of Mr. E.

“To the extent the trial judge based his acquittal on Mr. E.’s and the complainant’s shared belief would be a mistake of law that cannot form the foundation for an honest, but mistaken belief in consent defence,” the appeal panel said.

The accused cannot be named because of a court order that protects the identity of his wife.

Defence lawyer Anne-Marie McElroy said she was in the unusual position of arguing in favour of a retrial on appeal after her client’s acquittal. “The errors in law were pretty stark and difficult to argue against,” she said.

A new trial date has yet to be set. The acquittal made headlines in October 2017, when Ontario Superior Court Justice Robert Smith said the Crown had failed to prove the accused had formed the required criminal intent — mens rea — to sexually assault his wife in 2002. The judge ruled the man was not guilty because the Crown had failed to establish he knew his behaviour was criminal in light of his belief that he had the right to have sex with his wife without her consent.

The wife testified that, during their marriage — they were joined in an arranged marriage in the Gaza Strip — she considered it her obligation to have sex with her husband.

The couple separated in January 2013, but had difficulty making child arrangements work. Court heard it was during a dispute over child access that — after speaking to a police officer — the woman came to understand she had the right to refuse matrimonial sex.

She subsequently complained to police about a 2002 incident. She alleged her husband grabbed her by the wrist, pulled her onto the couch, pulled down her pants and had sex with her even though she asked him three times to stop.

The husband denied ever having sex with his wife without her consent and specifically denied the incident that led to the charges.

At that time, the man said, he had just undergone a hair transplant. His doctor, he testified, had told him to abstain from sex for two weeks after the surgical procedure and he insisted the alleged incident could not have happened because he had followed the medical advice.

Shaun O’Brien, executive director of the Women’s Legal Education and Action Fund, said the case highlighted the need for early and ongoing education about the issue of consent. “I think it’s really important to start at a young age and ensure that these principles are being communicated to boys and young men,” she said.

O’Brien said she was deeply concerned by the provincial government’s decision to scrap the modernized sex-ed curriculum and to use a 20-year-old version while a new instruction program was developed.