AN EXAMPLE OF THE DOWNPLAY OF THE “REASONABLE STEPS” REQUIREMENT CAUSING A CASE TO BE SENT BACK TO

TRIAL TO CONSIDER “MISTAKEN BELIEF IN CONSENT”

The short judgment in R. v. Tookanachiak (“Tookanachiak”),95_{the fourth case in my sam-}

ple, does not give us much in the way of facts. What we do know is that the complainant was unconscious “by reason of being asleep or otherwise passed out” at a time when the

91 Ibid. at para. 48.

92 Ibid. at para. 9.

93 Ibid. at para. 6.

94 Ibid. at para. 16.

accused was “engaged in oral sex upon her,” and that she was “easily awoken when the sex- ual activity was discovered by her friend.”96

The accused was acquitted in summary proceedings. The Crown appealed and the sum- mary conviction appeal judge entered a conviction, finding that the trial judge had erred by not applying the section of the Criminal Codethat states that no consent is obtained where the complainant is incapable of consenting.97_{The accused then appealed to the Court}

of Appeal where the conviction was overturned. The Court of Appeal accepted the ac- cused’s argument that because the evidence given at trial did not disclose whether the “sex- ual activity” commenced prior to the complainant falling asleep and if so, whether the accused was aware that she fell asleep, there is an “air of reality” of honest but mistaken be- lief in consent.98

In the Ewanchukdecision, Major J. said the mens reafor sexual assault is satisfied when it is shown that the accused knew the complainant was not saying “yes” as well as when he knew she was not saying “no.” However, as L’Heureux-Dubé J. pointed out in her concur- ring judgment, Major J. downplayed the importance of the requirement of the accused to take “reasonable steps” to ensure there was consent. This essentially ignored how the “rea- sonable steps” requirement, added as part of the 1992 law reforms, was supposed to mod- ify the test for mistaken belief, as Major J. held on to the idea that an “air of reality” for mistaken belief can exist even when the accused has not taken steps to ensure consent.99

Tookanachiakis a case that demonstrates the effects of Major J.’s adherence to the old com- mon law “air of reality” test.100

The evidence in this case established that the complainant was asleep and therefore inca- pable of consenting at a time when “sexual activity” was occurring, and the summary court appeal judge entered a conviction on this basis. This result makes sense if the accused is re- quired to take “reasonable steps” to ensure that the complainant has consented and has not withdrawn consent by falling unconscious.101_{The Court of Appeal’s decision to remove}

the conviction and send the case back to trial along with the possibility, according to the Court, that the accused had an honest but mistaken belief hints that the accused was not expected to have taken “reasonable steps” to ensure the continuation of consent. The pos- sibility that an accused can have mistaken belief when a complainant is unconscious, in- stead of an inference that he is at least reckless or wilfully blind in such a situation, tells us that the “reasonable steps” requirement is not being given much weight.

The lack of social context in Tookanachiak is also glaring. The complete absence of discus- sion regarding gendered and racial contributing factors or of sexual violence as an equal- ity issue is problematic in all decisions, but is especially so in one from Nunavut. The sexual

96 Ibid. at para. 3.

97 Ibid. at para. 4. See Criminal Code, supranote 5 at s.273.1(2)(b).

98 Tookanachiak, supranote 27 at para. 9.

99 Ewanchuk, supranote 4 at para. 45 and paras. 98-101, L’Heureux-Dubé J., concurring; and Hester Lessard,

“Farce or Tragedy? Judicial Backlash and Justice McLung” (1999) 10:3 Constitutional Studies 65 at 71, both cited in Gotell, supranote 2 at 145-46.

100 The test was articulated in R. v. Pappajohn, [1980] 2 S.C.R. 120, 111 D.L.R. (3d) 1, 1980 CarswellBC 546 (WLeC). It defined mistaken belief in consent as subjective and said that the defence must have an “air of real- ity” but need not be reasonable. See Gotell, supranote 2 at 145-46.

assault rate in Nunavut is reported at almost nine times the national average.102_{This con-}

text is not remotely hinted at in the Court of Appeal judgment. There is no mention of whether the complainant is an Inuit woman, no mention that Inuit women experience high rates of sexual assault, and no mention of colonialism as a factor.103

It is questionable whether judgments such as this one are affected by ideas of what conduct constitutes a “real rape”. In both this case and R.H.an “oral sex” act was involved, and both cases appear dismissive of the act as a crime. In writing about the “archetypal rape” in legal discourse as the rape of a white woman, Gotell comments that Black and Aboriginal women are portrayed as “unrapable.”104_{While we don’t know the identity characteristics of the}

women in either of these cases, I wonder whether the act that was committed also factors into whether the complainant was seen as “rapable” or not. If an act of “oral sex” is not considered something that typically happens during a rape or something that women would be inclined to resist, this may cause women who experience this form of assault to fall outside of the “ideal victim” category.

A friend told me of how she once woke up to a man performing “oral sex” on her. The phrase does not accurately explain what happened or how it affected her still, years later, when she told me her story. Jane Doe writes of being instructed to say “cunnilingus” on the witness stand at her rapist’s criminal trial. Can we not come up with another word, or phrase? I think of “oral rape,” but then we might confuse this act with a rapist forcing something into a woman’s mouth.

Nothing I can think of conveys the feeling of having this act forced on you when it is not desired. Would any word or phrase bring decision makers and others closer to understanding? More than once I have sat and lis- tened to well-meaning friends and fellow students opine that it is hard to see “oral sex” as rape. Like when I was confronted with my rapist, I can only shake my head and cannot speak. It is hard to explain that “oral sex” can be a violation, a rape, and what it can feel like.

VI. AN EXAMPLE OF AN “IDEAL VICTIM” AND OF PROBLEMATIC