Consent & Honest But Mistaken Belief

Key Takeaways

• Consent is based on the complainant’s willingness, expressed by words or actions. 
• Honest but mistaken belief in communicated  consent may be a defence if the accused genuinely misunderstood the situation. 
• The Crown must prove beyond a reasonable doubt that there was no consent or that the accused did not honestly believe there was consent. 
• The WD test is used by judges and juries to assess credibility and decide if there’s reasonable doubt. 

When it comes to sexual assault charges, two of the most important legal defences in Canada are consent and honest but mistaken belief in communicated consent. These concepts are critical to understanding how courts evaluate evidence and decide whether the Crown has met its burden of proof.

What Consent Means in Law

Consent isn’t about what the accused believes—it’s about what the complainant actually felt and expressed.

• Consent can be verbal: A clear “yes” to sexual activity. 
• Consent can also be non-verbal: Actions or behaviour that demonstrate agreement. 

However, consent must come from the complainant’s state of mind. They must be both willing and able to participate.

Honest but Mistaken Belief in Communicated Consent

Sometimes, an accused person may believe the complainant was consenting—even if, in reality, the complainant was not.

For example:

• A complainant may be saying to themselves internally (i.e., in their own mind)  that they do not want to consent,   but acting in a way that appears to signal consent. 
• If the accused genuinely and honestly believed the complainant consented,  even though they did not,   this can form the basis of a defence known as honest but mistaken belief in communicated  consent. 

The Crown must then prove beyond a reasonable doubt that this belief was either not honest or not reasonable in the circumstances.   The honest but mistaken belief in communicated consent defence arises in narrow circumstances which are sometimes difficult to establish.  Most sexual assault trials boil down to whether the complainant consented or not and the honest but mistaken belief in communicated consent defence does not arise. 

The Burden of Proof: Beyond a Reasonable Doubt

In Canada, the Crown always carries the burden of proof. They must establish either:

1. That there was no consent, or 
2. That the accused did not honestly believe there was consent. 

This standard isn’t about what’s “probably true.” Proof beyond a reasonable doubt in  criminal law  is much closer to absolute certainty than it is to the  mere balance of probability required in a civil lawsuit.  This high bar exists because criminal cases involve a person’s liberty—not just money or damages, like in a civil lawsuit.

The WD Test and How Judges Decide

The WD test, created by the Supreme Court of Canada, guides judges and juries in evaluating evidence:

1. If the accused’s testimony is believed, they must be acquitted. 
2. If the accused’s testimony isn’t fully believed, but it raises a reasonable doubt, they must still be acquitted. 
3. Even if the accused’s evidence is rejected entirely, the Crown must still prove guilt beyond a reasonable doubt. 

This is why many sexual assault trials come down to whether there is any lingering reasonable  doubt after all the evidence has been considered.

The Bottom Line

Consent and honest but mistaken belief in communicated consent are complex but vital legal concepts in sexual assault cases. The law is designed to protect the presumption of innocence by holding the Crown to a very high standard of proof.

If you’re facing a sexual assault charge, it’s critical to have a lawyer who understands these defences and how to apply them effectively in court. At Kruse Law Firm, we use our experience to carefully examine the evidence and challenge the Crown’s case at every step.

Video Transcription:

I’m glad you could join us today and welcome to our website.

I’m here to talk to you about a couple of defense in sexual assault matters.

The Key defenses, of course, are consent – whether the complainant consented to sexual activity with you and whether the crown can prove beyond reasonable doubt that she or he did not consent.

The other defense, of course, is honest but mistaken belief in consent.

Let’s look at consent for a second, what does consent involve, well, consent is based on the alleged victim’s subjective view of things. Did she willingly, or he, participate or agree to engage in sexual activity. Now consent can be by words, or by conduct, you can say ‘yes’ or your conduct, your actions can say yes. But it has to be in her mind, whether she’s willing and able, and she’s expressing that in some fashion to the accused.

Now, there’s some situations where the victim does not consent, she’s not agreeing, but her actions might demonstrate to an accused, who believes she’s consenting, there are situations, that situations called honest but mistaken belief in consent.

Take for example a situation in which, the woman’s internally saying ‘no’ in her mind and not consenting, but all of her actions are showing, or at least some of them, and the accused is thinking that she is consenting.

So the crown has a negative this consent, this defense beyond reasonable doubt, in other words its the crown’s burden to move the scales of justice all the way down to show a lack of consent, proof beyond reasonable doubt can be expressed in different ways. It has to be proof beyond reasonable doubt that the complainant was not consenting, or proof beyond reasonable doubt that the accused did not have an honest but mistaken belief in consent. And that presumption and the burden of those scales has to go right down to the point where the jury or the judge is sure that it happened. Not just probably or maybe, but sure that there was no consent, or sure that the accused did not honestly but mistakenly believe in consent.

If the accused testifies in any criminal trial, but in particular sexual assault trial, the judge or jury has to assess the credibility in three ways essentially – three steps. So let’s take, let’s say the accused said she consented, number one, the judge would say ‘if I believe the evidence of the accused, I must acquit, if I believe the accused evidence that she consented I must acquit’. Step two, ‘even if I do not believe the evidence of the accused that the victim consented, am I left in a reasonable doubt by this evidence, am I sure in other words’.

It’s not probability either, like, you know, proof beyond reasonable doubt is far closer to absolute certainty than it is to probability. This is not a lawsuit, this is where people’s liberty’s involved, in lawsuits its just who’s more likely telling the truth, the scales of justice have to put – be moved all the way down.

The third step, and this is why people can win criminal trials with a good lawyer, that’s step two and three, but let’s look at step three, even if you completely reject the evidence of the accused in other words I don’t believe anything he says, the crown still has to prove the case beyond reasonable doubt on all the other evidence, and that step is often won at criminal trials because the judge says you know I believe the complainant, he or she is probably telling the truth but I have a residual doubt, I’m not sure. That’s the burden of proof in Canada and that’s step three of the WD test by the Supreme Court of Canada.

So there in a nutshell is a little bit of a summary or press C on consent, honest but mistaken belief consent and the WD test which is our democratic right for people are presumed to be innocent in Canada.