McGILL LAW JOURNAL
[Vol. 26
Pappajohn: Safeguarding Fundamental Principles
In R. v. Pappajohn1 six of seven judges in the Supreme Court of
Canada held, in a dramatic rape case, that an honest, unreasonable
mistake as to consent is a valid defence. This ruling unambigously
applies to all mens rea offences. I shall argue that it was predictable
and correct, and that the approach through general principles was
the best one.
I. Background
In England two severe nineteenth-century decisions which shaped
the law of mistake of fact are only now being challenged in that
country, though not yet overruled. In R. v. Prince2 the accused was
charged with the statutory offence of abduction of an unmarried
girl under the age of sixteen. The evidence was that he had reason-
able grounds to believe that she was eighteen. An overwhelming
majority (15-1)
in the Court of Crown Cases Reserved decided that
the offence was one of absolute liability in which mistake, however
reasonable, could not excuse. In R. v. Tolson,3 the same court was
asked to decide whether a mistaken belief that her husband was
dead at the time of a second marriage should afford a defence to
a woman facing a statutory charge of bigamy. Section 5 of the
Offences Against the Person Act4 contained no express language
requiring mens rea, but provided a defence to:
any person marrying a second time whose husband or wife shall have
been continually absent from such person for the space of seven years
then last passed, and shall not have been known by such person to be
living within that time.
The majority, following the opinion of Brett J., dissenting in Prince,,
accepted that an overriding principle of mens rea applied to statutory
offences in the absence of any indication to the contrary. The classic
dictum is that of Cave J.:
At common law an honest and reasonable belief in the existence of cir-
cumstances, which if true would make an act for which a prisoner is
indicted an innocent act has always been held to be a good defence.O
1 (1980) 14 C.R. (3d) 243 (S.C.C.).
2 (1875) L.R. 2 C.C.R. 154, fully discussed by Williams, Criminal Law: The
General Part, 2nd ed. (1961), 177-201 and Cross, Centenary Reflections on
Prince’s Case (1975) 91 L.Q.R. 540.
3 (1889) 23 Q.B.D. 168 (C.C.R.), discussed by Williams, supra, note 2, 177.
4 24-25 Vict., c. 100, s. 57 (U.K.).
5Overlooked by Dickson 3. in Pappajohn, supra, note 1, 260.
OSupra, note 3, 181.
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COMMENTS – COMMENTAIRES
Yet this judgment, because it required that the mistake bt
honest and reasonable, introduced an objective test that severely
limited the scope of the doctrine of mens rea. Oddly enough, it was
never argued7 that if the courts wanted a requirement of mens rea
they should simply have recognized that a genuine mistake would
excuse, however unreasonable. The Privy Council affirmed the test
in Tolson that a mistake must be both honest and reasonable
and mechanically applied it to other offences as well as to bigamy.”
Decisions that the mistake need merely be honest were comparatively
rare. 10 The test in Tolson was also adopted in Australia where it is
still authoritative.”
The House of Lords reviewed afresh the law on mistake in D.P.’.
v. Morgan,2 an appeal by four persons from convictions of rape.
One of the accused invited three fellow R.A.F. officers to have
sexual intercourse with his wife, saying that she was “kinky”
and would pretend to resist. The main issue was consent but
the trial judge also directed the jury that a reasonable mistaken
belief in consent could excuse. By a majority of 3-2 the Law
Lords concluded that this direction was wrong. On the substantive
point, four Lords approached the matter as one of general principle
and concluded that the mens rea for rape was either an intent
to have sexual intercourse without the consent of the woman or
recklessness as to her non-consent. 3 The test was subjective and
this was inconsistent with the proposition that mistake must be
reasonable. Although sympathizing with academic lawyers such as
Professor Williams, who have criticized the objective test, Lord
Edmund-Davies felt constrained to follow the ninety-year-old prece-
dent of Tolson.1 The other three Lords in the majority also showed
7D.P.P. v. Morgan [1976] A.C. 182, 202 (H.L.) per Lord Cross.
8 Bank of New South Wales v. Piper [1897] A.C. 383 (P.C. –
from N.S.W.).
9 There was a return to the absolute responsibility of Prince in R. v. Wheat
[1921] 2 K.B. 119 (C.C.A.)
(honest and reasonable belief in divorce was no
defence to bigamy) until Wheat was reversed in R. v. Gould [1968] 2 Q.B.
65 (C.A.) in favour of Tolson. See also Warner v. Metropolitan Police Com-
missioner [1969] 2 A.C. 256 (H.L.) and Sweet v. Parsley [1970] A.C. 132 (H.L.).
(falsely practising medicine)
‘0 Wilson v. Inyang [1951] 2 K.B. 799 (D.C.)
and R. v. Smith [1974] Q.B. 354 (C.A.) (wilful damage).
Law, 3rd ed. (1977), 3824.
11 R. v. Thomas (1937) 59 C.L.R. 279 (Aust. H.C.); see also Howard, Criminal
‘ 2 Supra, note 7. See the approving review by Williams, Textbook of Criminal
Law (1970), 1004; cf. the scepticism of Fletcher, Rethinking Criminal Law
(1978), 699-706 and Pickard, Culpable Mistakes and Rape: Relating Mens Rea
to the Crime (1980) 30 U.T.L.J. 75.
1Ibid., 203 per Lord Cross; 209 per Lord Hailsham; 225 per Lord Edmund.
Davies; 237 per Lord Fraser.
14 Ibid., 234-5.
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[Vol. 26
an extraordinary preoccupation with precedent, carefully distin-
guishing Tolson so as to leave it intact: 15 for example, Lord Cross
made it clear that in a statutory offence which did not have an
express statutory requirement of mens rea he would apply the
Tolson rule.1- Why this would follow, and whether this was desirable,
was not addressed. At least there is no ambiguity about the views
of Lord Simon, dissenting. After reviewing the case law, which he
treated as binding, he held that an honest but unreasonable belief
would not amount to sufficient evidence to be put to the jury.
Why, he asked, should a court concern itself with the reasonableness
of the mistake?
The policy of the law in this regard could well derive from its concern
to hold a fair balance between the victim and the accused. It would
hardly seem just to fob off a victim of a savage assault with such comfort
as he could derive from knowing that his injury was caused by a belief,
however absurd, that he was about to attack the accused. A respectable
woman who has been ravished would hardly feel that she was vindicated
by being told that her assailant must go unpunished because he believed,
quite unreasonably, that she was consenting to sexual intercourse with
him.17
Condemned by the media as a rapist’s licence, the Morgan
decision provoked a public outcry in both England and Australia Is
Governments in both jurisdictions soon asked law reform commis-
sions and special study groups to review thoroughly all aspects
of the law concerning rape. The various recommendations were
far-reaching, but as regards mistake of fact no one has recom-
mended that the ruling in Morgan should be changed. Indeed, in
England, the ruling was finally expressly codified as follows:
(1) [A] man commits rape if: (a) he has unlawful sexual intercourse
with a woman who at the time of the intercourse does not consent
to it; and (b) at the time he knows that she does not consent to the
intercourse or he is reckless as to whether or not she consents to
it ….
(2) It is hereby declared that if at a trial for a rape offence the jury
has to consider whether a man believed that the woman was consent-
ing to sexual intercourse, the presence or absence of reasonable
grounds for such a belief is a matter to which the jury is to have
regard, in conjunction with any other relevant matters, in considering
whether he so believed.’ 9
‘5 Ibid., 202 per Lord Cross; 215 per Lord Hailsham; 238 per Lord Fraser.
16 Ibid., 202.
17 Ibid., 221.
18 See the excellent review by Scutt, The Australian Aftermath of D.P.P. v.
Morgan (1977) 25 Chitty’s L.J. 289 and, in England, The Report of the Advisory
Group on the Law of Rape (The Heilbron Report, Cmnd 6352 (1975)).
19 Sexual Offences (Amendment) Act, 1976, c. 82. Pickard (supra, note 12, 92)
reads this amendment as being ambiguous as to whether an unreasonable
1981]
COMMENTS – COMMENTAIRES
For more than twenty years the Supreme Court of Canada
has followed a distinct approach to the law of mistake, stemming
from the judgments of Cartwright J. (as he then was) who, in a
minority concurring judgment in R. v. Rees2 and for the majority
in R. v. Beaver,2 1 qualified the Tolson test. According to Mr Justice
Cartwright,
rightly
decided that:
the English decision of Wilson v. Inyang
the essential question is whether the belief entertained by the accused is
an honest one and that the existence or non-existence of -reasonable
grounds for such belief is merely relevant evidence to be weighed by the
tribunal of fact in determining that essential question.2
This ardent concern to insist on the requirement of mens rea
and on the subjective test was perhaps insufficiently articulated or
justified in the reasons for judgment. 4 Yet Cartwright J.’s words
cannot be rationalized as mere obiter or as failing to establish a
generalized subjective approach to mistake.2 5 In any event several
decisions in Canada have required the mistake to be honest and
reasonable2 6 but Beaver has often been accepted 27 and many
cases28 have held that a merely honest mistake will excuse in the
case of a mens rea offence.
belief will excuse. Her argument hinges on the decision not to define
“recklessness”. It is to be hoped English judges will not frustrate clear
parliamentary intention and maintain the majority’s subjective stance in
Morgan.
20 [1956] S.C.R. 640 (Nolan 1. concurring) in respect to a mistake as to age
relevant to a charge of wilfully contributing to delinquency: Juvenile Delin-
quents Act, R.S.C. 1952, c. 160, s. 33(1) [now R.S.C. 1970, c. J-3, s. 33(1)].
21 [1957] S.C.R. 531.
2 2 Supra, note 10.
23 Supra, note 21, 538.
24 See particularly Weiler, In The Last Resort (1974), 94: “One senses that
is very sketchy just because he
Cartwright’s defence of … mens rea …
believes the answer is obvious.”
25See Pickard, supra, note 12, 85-9.
26See O’Halloran J.A. in R. v. McLeod (1954) 2 C.R. 281 (B.C.C.A.); Mackay
J.A. in R. v. McAuslane [1968] 1 O.R. 209 (C.A.). Ritchie J. in R. v. King
[1962] S.C.R. 746; R. v. Finn [1972] 3 O.R. 509 (C.A.); R. v. Custeau [1972] 2
O.R. 250 (C.A.) and R. v. Woolridge (1979) 49 C.C.C. (2d) 300 (Sask. Prov. Ct)
(bigamy in the belief he was divorced).
V Only in the Supreme Court has this occurred: e.g., for possession of
lobsters (R. v. Pierce Fisheries Ltd [1971] S.C.R. 5); pollution (R. v. City of
Sault Ste Marie [1978] 2 S.C.R. 1299); and driving while suspended (R. V.
Prue [1979] 2 S.C.R. 547).
28R. v. Davidson (1971) 3 C.C.C. (2d) 509 (B.C.C.A.); R. v. Kundeus [1976]
2 S.C.R. 272, 278 per Laskin C.SC. (dissenting on a different point); R. v.
Couture (1977) 33 C.C.C. (2d) 74 (Ont. C.A.); R. v. Vlcko (1973) 10 C.C.C. (2d)
139 (Ont. C.A.); R. v. Chow (1978) 41 C.C.C. (2d) 143 (Sask. C.A.) and R. v.
Prue, supra, note 27.
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II. Pappajohn
The controversy triggered by Cartwright J.’s decision in Beaver
has become a matter of history since Pappajohn. The accused,
a businessman, met with the complainant, a real estate salesperson,
to discuss the pending sale of his house. After a three-hour lunch
during which much liquor was consumed, the accused took the
complainant to his house. Some three hours later the complainant
ran naked out of the house with a bow-tie round her neck and
her hands tied tightly behind her back by a bathroom sash. A
neighbour, a priest, received her in an obviously distraught state.
At trial the. complainant denied any form of consent, testifying
that she had physically and mentally resisted throughout. Pappa.
john’s testimony was the opposite: according to him, there had been
preliminary love-play with her consent and acts of intercourse,
again with her consent; the gagging and binding was done to
stimulate sexual activity, and it was only then that she suddenly
became hysterical and screamed. The trial judge ruled that there
was insufficient evidence to leave the defence of mistake of fact
with the jury.
A majority of the Supreme Court of Canada 2 affirmed this ruling:
It would seem to me that, if it is considered necessary in this case to
charge the jury on the defence of mistake of fact, it would be necessary
to do so -in all cases where the complainant denies consent and an
accused asserts it. To require the putting of the alternative defence of
mistaken belief and consent, there -must be, in my opinion some evidence
beyond the mere assertion by the counsel for the appellant of belief
in consent. This evidence must appear from or be supported by sources
other than the appellant in order to give it any air of reality.; 0
McIntyre J. held that there was an air of reality to the evidence
in R. v. Plummer and Brown,3 1 where the complainant had apparently
consented to intercourse with the accused, although she was still
under a threat previously made by another. Similarly, in Morgan
there had been some evidence tending to explain the mistaken belief.
Mr Justice Dickson, having made it clear that it was immaterial
whether the source of the evidence was the accused alone, 2 dis-
sented on the ground that there was sufficient evidence to convey
a sense of reality to the defence of mistake in respect of the acts
of intercourse before the complainant was bound. The judge lists
the following elements of circumstantial evidence:
2 9 Per McIntyre I., Pigeon, Beetz and Chouinard JJ. concurring: Martland
J. also concurred on this point.
3oSupra, note 1, 283.
31 (1975) 31 C.R.N.S. 220 (Ont. CA.).
32Supra, note 1, 262.
1981]
COMMENTS – COMMENTAIRES
(1) Her necklace and car keys were found in the living room. (2) She
confirmed his testimony that her blouse was neatly hung in the clothes
closet. (3) Other items of folded clothing were found at the foot of the
bed. (4) None of her clothes were damaged in the slightest way. (5) She
was in the house for a number of hours. (6) By her version, when she
entered the house the appellant said he was going to break her. She
made no attempt to leave. (7) She did not leave while he undressed. (8)
There was no evidence of struggle. (9) She suffered no physical injuries,
aside from three scratches. 33
Although one readily sympathizes with the plight of a rape victim
who must testify, and particularly a rape victim in a cause cdl~bre,
it is difficult to construe the evidence as not surmounting the low
hurdle required in order to leave the matter to the jury, where issues
of fact properly belong.
On the more important substantive point, Dickson J.’s judgment
becomes the majority. McIntyre J. specifically holds that the de-
cision in Beaver precludes
the interpretation of Lambert J.A.,
dissenting in the Court below, that the mistake would have to be
a reasonable one.34 He also expressly concurred with that part
of Dickson J.’s judgment on the defence of “mistake of fact”.35
Martland J. in lonely dissent left the point open: the pronouncement
in Beaver was obiter, he said, and the ruling in Inyang was not
a general definition of the defence of mistake of fact.
Mr Justice Dickson’s review of the authorities is somewhat
cumbersome.36 Yet the rest of the judgment is another outstanding
example of this eminent jurist’s attempt to expound a principled
approach to Canadian criminal law. In the context of mistake he
makes several important clarifications. First, the defence of mistake
is simply a denial of mens rea which does not leave the accused
with a burden of proof but merely requires that he adduce sufficient
evidence to put the defence in issue:
Mistake of fact is more accurately seen as a negation of guilty intention
than as the affirmation of a positive defence. It avails an accused who
acts innocently, pursuant to a flawed perception of the facts, and none-
theless commits the actus reus of an offence. Mistake is a defence, though,
in the sense that it is raised as an issue by an accused. The Crown is
rarely possessed of knowledge of the subjective factors which may have
caused an accused to entertain a belief in a fallacious set of facts3 7
33 Ibid., 273.
34 Ibid., 277-8.
35 Ibid., 284.
30 Ibid., 252-68.
37Ibid., 261. This implicitly reverses the majority view in Kundeus (supra,
note 28) that there is a “rebuttable presumption of mens rea”. It accords with
the dissent of Laskin C..C. in that case:’ “If mistake is put forward in this
context by evidence offered by or on behalf of the accused, it is only by way
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[Vol. 26
Second, a requirement that mistake to excuse be both honest
and reasonable is liability based on objective negligence, and is
therefore not applicable to a mens rea offence like rape, but indeed
a requirement in negligence cases:
It is not clear how one can properly relate reasonableness (an element
in offences of negligence) to rape (a “true crime” and not an offence of
negligence). To do so, one must, I think, take the view that the mens rea
goes only to the physical act of intercourse and not to non-consent,
and acquittal comes only if the mistake is reasonable. This, upon the
authorities, is not a correct view, the intent in rape being not merely
to have intercourse but to have it with a non-consenting woman. If the
jury finds that mistake, whether reasonable or unreasonable,
there
should be no conviction. If, upon the entire record, there is evidence of
mistake to base a reasonable doubt upon the existence of a criminal
mind, then the prosecution has failed to make its case.38
This analysis is logically imperative, assuming one accepts the
mens rea definitions. Moreover, one can infer that, in respect of
the well-known categories of offences outlined in Sault Ste Marie39
for strict liability offences, a mistake to excuse must be reasonable
with the onus on the accused, while for absolute responsibility
offences, it would be axiomatic that a mistake of fact would be
simply irrelevant.40
Third, there is no justification for the distinction made by
Lord Cross in Morgan which would allow the defence of unreason-
able mistake in statutory offences expressly importing mens rea
but not in statutory offences which are absolute on their face.
This rejection is welcome; 41 otherwise the fundamental question
of blameworthiness would be determined by the vagaries of statutory
draftmanship.42
Apart from these assertions of principle, Dickson J.’s judgment
is also noteworthy for its discussion of policy issues. In the eyes
of many, the law of rape needs to be reformed, particularly so as
of meeting an evidentiary burden and raising a reasonable doubt that the
Crown has met the persuasive burden of proof resting upon it” (p. 144).
28 Supra, note 1, 264.
39 Supra, note 27, 373-4.
40 The decisions in R. v. Custeau (supra, note 26) and in R. v. Finn (supra,
note 26), that an honest and reasonable mistake would avail in a case of
absolute liability, cannot be sound.
41 But see the similar approaches of Cross, supra, note 2, 547, Pickard,
supra, note 12, 85, 91-2 and Martland J., supra, note 1, 251.
42A partial qualification needs to be made with regard to bigamy. S. 254
of the Criminal Code requires that bigamy where the second marriage was
on the belief that the prior spouse was dead be only excused if the mistake
was honest and reasonable. Other types of bigamy can be excused by an
honest mistake alone. See Woolridge, supra, note 26.
19811
COMMENTS – COMMENTAIRES
to lessen the trauma suffered by the victim when the matter is
dragged through the courts. In
the court below, Lambert J.A.,
dissenting, raised arguments similar to those expressed by Lord
Simon in Morgan:
Why should a woman who is sexually violated by such a man have to
defend herself by screams or blows in order to indicate her lack of
consent, or have to consent through fear, for a charge of rape to be
sustained? Surely a firm oral protest, sufficient to deny any reasonable
grounds for belief in consent, should be a sufficient foundation in these
circumstances for a charge of rape.43
Dickson J.’s careful response is worth quoting at length:
I am not unaware of the policy considerations advanced in support of
the view that if mistake is to afford a defence to a charge of rape it
should, at the very least, be one that a reasonable man might make in
the circumstances. There is justifiable concern over the position of the
woman who alleges that she has been subjected to a non-consensual
sexual act; fear is expressed that subjective orthodoxy should not enable
her alleged assailant to escape accountability by advancing some cock-
and-bull story. The usual response of persons accused of rape is: “She
consented”. Are such persons now to be acquitted simply by saying:
“Even if she did not consent, I believed she consented”? The concern
is legitimate and real. It must, however, be placed in the balance with
other relevant considerations. First, cases in which mistake can be ad-
vanced in answer to a charge of rape must be few in number. People
do not normally commit rape per incuriam. An evidential case must exist
to support the plea. Second, if the woman in her own mind withholds
consent but her conduct and other circumstances lend credence to belief
on the part of the accused that she was consenting, it may be that it is
unjust to convict. I do not think it will do to say that in those cir-
cumstances she in fact consented. In fact, she did not, and it would be
open to a jury to so find. Third, it is unfair to the jury and to the
accused to speak in terms of two beliefs, one entertained by the accused,
the other by a reasonable man, and to ask the jury to ignore an actual
belief in favour of an attributed belief. The mind with which the jury
is concerned is that of the accused. By importing a standard external
to the accused, there is created an incompatible mix of subjective and
objective factors. If an honest lack of knowledge is shown, then the
subjective element of the offence is not proved.44
Dickson J. concluded in effect that the debate on the reasonableness
of mistake was a tempest in a teapot and that we should have
faith in the ability of our jurors:
Perpetuation of fictions does little for the jury system or the integrity
of criminal justice. The ongoing debate in the courts and learned journals
as to whether mistake must be reasonable is conceptually important
in the orderly development of the criminal law, but, in my view, prac-
4 3 Supra, note 7, 212.
44 Supra, note 1, 266-7.
McGILL LAW JOURNAL
[Vol. 26
tically unimportant, because the accused’s statement that he was mistaken
is not likely to be b6lieved unless the mistake is, to the jury, reasonable. 46
Dickson J. should be commended for upholding general principles
in the highly emotive debate concerning rape trials. While there is
a clear need to improve the evidentiary and procedural rules in
a rape trial, both pre-trial and during trial, it is also arguable that
a substantive change denying the defence of unreasonable mistake
would distort general principles and, perhaps more importantly, not
benefit a rape victim. Scutt puts this view forcefully:
The contention of those backing inclusion of a reasonableness standard
is that male views of female sexuality predominate: that the predominant
view in current society is that, a woman says “no” when she means
“yes”, that wearing of short skirts, hitchhiking,, drinking too much, all
signify a willingness on the part of a woman to partake of sexual inter-
course –
she asked for it, and that these views should be eliminated.
However, these are the very standards that may be incorporated into any
judgment by a jury on the basis of reasonableness; thus inclusion of an
honest and reasonable standard, rather than just an honest standard,
would not seem to alter the social beliefs predominating in our culture,
and would seem to avail nothing. It would appear, therefore, that rather
than objecting to inclusion in legislation of the common law position
that no man can be convicted of rape unless he intended to have sexual
intercourse without consent of the victim, or was reckless thereto, the
better approach would be to tackle those social problems underlying
misconceptions of female roles and misconceptions of female sexuality.46
In general, the case for an objective standard in criminal law,
although increasingly familiar,47 is not overwhelming. We must
always remember the fundamental notion that the criminal sanction
is a blunt instrument and must be wielded with restraint.4 8 The
real danger in resorting to the objective standard is that it may
be unthinking pandering to those who maintain, without offering
evidence, that an extension of the criminal law is needed for reasons
of law and order. In fact, the objective standard may well do
more harm than good. Criteria such as “reasonable”, “culpable” or
“morally at fault” may amount to vehicles for personal whim or
peevishness and run afoul of the fundamental nulla poena sine lege
principle. The most notorious example of this kind of abuse is
45 Ibid., 267.
46 Supra, note 18, 296-7.
47 See especially Fletcher, supra, note 12, 2624, 504-11 and The Theory of
Criminal Negligence: A Comparative Analysis (1971) 119 U. Penn. L. Rev. 401.
In the Canadian context see Stuart, The Need to Codify Clear, Realistic and
Honest Measures of Mens Rea (1973) 15 Crim. L.Q. 160; Gordon, Subjective
or Objective Mens Rea (1975) 17 Crim. L.Q. 355; O’Hearn, Criminal Negli-
gence: An Analysis in Depth (1964) 7 Crim. L.Q. 27 and 407.
4 8 Law Reform Commission of Canada, Report: Our Criminal Law (1976).
19811
COMMENTS – COMMENTAIRES
the attempt to enforce obscenity laws, pornography being very
much in the groin of the beholder.4 9 The subjective approach,
however, obliges us to judge the individual entirely on his own
merits and his own thoughts. We should be cautious about con-
victing those who simply did not think or did not think well enough
for whatever reason. This is not the place to rebut Professor
George Fletcher’s elaborate and all-encompassing thesis favouring
a “normative” rather than “descriptive” approach to mens rea.50
Let us merely note that, to the extent it minimizes the importance
of the distinction between the objective and subjective approaches,
it carries the very real risk of masking a carefree resort to the
objective test which could operate as a tool of repression against
the less fortunate. Moreover, a recognition that to excuse in a
most serious crime like rape mistake must also be reasonable
is to allow guilt to be established through proof of simple negligence
alone. There should be very good reasons advanced for this ex-
tension of the grounds for culpability.
Finally, it seems wise to wait for Parliament to address these
questions of re-definition and for Parliament to distinguish between
crimes in which culpability is based on a subjective standard and
those of a lesser culpability based on an objective test. This view
is shared by Cross:
one reason why the maximum punishment for rape is life imprisonment
is that the common man considers rapists to be very wicked people.
Someone who believes, albeit without reasonable cause, that the woman
is consenting may well be stupid and insensitive, but he is not wicked
in the sense in which the rapist is wicked. If there is a real need for it,
let us have a new statutory offence of having sexual intercourse being
negligent as to the woman’s consent, but let us also consider care-
fully what the maximum punishment should be, and above all let us
not call the crime “rape”.51
We are rightly concerned with the victim of a crime. But we must
also be concerned with the consequences of criminal conviction.
Although most would agree that a convicted rapist needs severe
punishment, we must remind ourselves that rape has a maximum
penalty of life imprisonment, that rapists are invariably sent to
penitentiary, most for a very long time, and have traditionally been
considered dangerous when the question of parole comes to be
considered. In this serious offence as in all other types of criminal
sanctions, there is good reason to be mindful of using the force
of the criminal law with restraint.
4 9 Rembar, The End of Obscenity, quoted in The New York Times Book
Review, June 23, 1968.
5OSupra, note 12.
51Supra, note 2, 552.
McGILL LAW JOURNAL
[Vol. 26
III. A new approach?
Dickson J.’s judgment in Pappajohn, and particularly his resort
to the concept of recklessness, has already been severely criticized
by Professor Toni Pickard:
cannot –
Now I think it undeniable that the relationship of mistakes to culpability
is one of the central conundrums of criminal law. Working it through,
in all its complexity, forces us to attend to the reasons for the ultimate
stand-off between objective and subjective theorists. Conundrums of this
nature should not –
be resolved by mere definitional pre-
ference. Yet Dickson J. does nothing to anchor his preference in theory
or authority. Nowhere in the judgment does he either give reasons, or
refer us to reasons which justify his definition of recklessness by relating
it to a coherent theory of culpability. Nor does he acknowledge or in any
way attend to our large experience with other meanings of “recklessness”
in ethical discourse, in lay language, in other areas of law, and in criminal
law itself …
These defects are the defects of orthodoxy ‘taking tenets to be self-
evident and self-justifying, dissenting arguments
to be superficial or
non-existent. As a declaration of orthodoxy, Pappajohn will undoubtedly
comfort the faithful. The sceptic must remain unpersuaded.5 2
In the main Pickard exaggerates. The judge who wrote the decision
in Sault Ste Marie for the whole Court is not lacking in theory or
authority and need not constantly re-assert his views. In PappaJohn
Dickson J. faithfully reviews decisions from three jurisdictions
which hold that rape can be committed recklessly and that the
approach is subjective. Although it is true that Dickson J. could
have explored the layers of meaning of the world “recklessness”
in other branches of the law, there would be no immediate ad-
vantage in so doing. It is also true that recklessness in criminal
law has sometimes been interpreted in the objective sense, usually
involving a concept of gross negligence, but this notion is confined
criminal negligence.5 3 Because
to that rogue concept in our Code –
section 203 speaks of “wanton or reckless”, arguably the objective
approach is express.5 4 Finally, although Dickson J. does not address
the existence or wisdom of objective offences, he himself has
recognized the objective standard for manslaughter15 and for public
welfare offences in Sault Ste Marie. It is to be hoped that the
52 Culpable Mistakes and Rape: Harsh Words on Pappajohn (forthcoming).
53The sorry debacle of case law is reviewed in Annual Survey of Canadian
Law: Part 3. Criminal Law and Procedure (1977) 9 Ottawa L. Rev. 568, 576-7.
54 Dangerous driving is defined in the Criminal Code, R.S.C. 1970, c. C-34,
233(4) as driving “in a manner that is dangerous to the public, having regard
to all the circumstances including the nature, condition and use of such place
and the amount of traffic that at the time is or might reasonably be expected”
[emphasis added].
55 R. v. Smithers [1978] 1 S.C.R. 506, 519-20.
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COMMENTS – COMMENTAIRES
Supreme Court will fully investigate variable and individual stand-
ards of objective negligence when the next occasion arises. In Pappa-
john, at least, there was no context for such an investigation, since
there is no authority anywhere for an objective approach to rape.
Pickard’s most serious criticism refers to Dickson J.’s supposed
orthodoxy. She herself has recently written an article on the law
of mistake,56 in which she criticizes the value of a “global concept
of mens rea conceived as the agglomerate of defined mental states”
as too simple, not reflecting lay concepts of blameworthiness and
resulting in difficult issues like that of the relationship of factual
mistakes to culpability being derivatively resolved on the narrow
basis of “asserting the logical implications of initial definitions”.
Her preference is for a normative approach, developed offence-by-
offence. She chooses to test this hypothesis on the offence of rape.
In a carefully restricted argument, she proposes that in rape an
unreasonable mistake as to consent is sufficiently culpable for a
conviction. This view is expressly not based on policy concerns
for the victim0 7 but on an analysis of the nature of the conduct
involved in rape. A man about to have sexual intercourse has “his
mind fodussed necessarily on the legally relevant transaction” which
can only be determined as harmful by “reference to the world
outside him”;”‘ he must, therefore, be required to inquire into
consent. Balancing the minimal cost of taking reasonable care in
this inquiry as against the major harm caused to the woman, she
concludes it is sound and fair policy to require “reasonable care,
given the capabilities of the actor”.59 She rejects the argument
that this would be unfair and that making a mistake, even an
unreasonable one, is not bad enough for criminal responsibility.
Pickard’s work is a clear and impressive reminder that established
principles, whatever their antiquity, must be continually tested and
justified by rigorous critical analysis.
Yet we need not be “in total bondage to the subjectivist bug”‘0 0
to disagree with Pickard’s conclusions. We can favour a cautious
extension to an objective approach in some cases, perhaps limited to
a concept of gross objective negligence, but still believe that the
general approach should be subjective and that a distinction in
culpability between objective and subjective standards should be
preserved. Moreover, Pickard fails to recognize that her approach,
56 Supra, note 12, with which I respectfully disagree.
57 Ibid., 90, n. 45.
50 bid., 75.
159 Ibid., 77.
60 Cross, supra, note 2, 551.
McGILL LAW JOURNAL
(Vol. 26
however sensitive in allowing for individual factors, involves an
objective standard.6’ We must be honest and not use double talk. She
also develops a notion of culpability for the purposes of conviction
without relating this to the question of penalty. Yet, we should
know enough about the ineffectiveness of the criminal sanction
to realize it must be used with restraint. Surely we should dis-
tinguish in advance those subjectively from those objectively at
fault when convicting and sentencing. Finally, she does not ade-
quately demonstrate that her offence-by-offence model has advanta-
ges outweighing the disavantages of departing from the search
for sound principles.
Pickard’s. approach involves unworldly complexity as well as
several conceptual weaknesses. In the course of distinguishing the
offence of rape, Pickard fashions a novel and intricate analysis, in
which certain propositions are at least questionable:
1. Although it does not excuse in the case of recklessness as to cir-
cumstances, simple ignorance will provide a defence in a case of
knowledge as to circumstances, or intention, or recklessness as to
consequences.P
2. The act of rape necessarily focuses the accused’s mind on the relevant
legal transaction, whereas acts of homicide, driving, construction,
and possession 3 necessarily do not.
3. Her notion of careless advertence 64 differs from the familiar Williams
double-barrelled notion of recklessness, in which there is a require-
ment of subjective foresight, but also one of objective disregard.0,
4. The inquiry into consent to sexual intercourse is a “simple” one of
“actual verbal inquiry”.66
5. The choice of express mens rea words by Parliament is completely
determinative of fundamental questions of culpability 7
61 “This individualized standard is neither ‘subjective’ nor ‘objective’. It
partakes of the subjective position because the inquiry the fact finder must
conduct is about the defendant himself, not about some hypothetical ordinary
person. It partakes of the objective position because the inquiry is not limited
to that was, in fact, in the actor’s mind, but includes an inquiry into what
could have been in it, and a judgment about what ought to have been in it”
(supra, note 12, 79).
6 2 Ibid., 76-7, 96-7. It is submitted that Williams’s similar view (supra, note
2, 151-2) is wrong and astounding from one who has done more than anyone
else to ensure the subjective approach is not distorted. In his Textbook of
Criminal Law Williams retains his conclusion but expresses misgivings (p. 75).
63 See Pickard, note 12, 76, n. 5; 81; 88.
04 Ibid., 81.
65 Williams, supra, note 2, 58-64.
6
6Pickard,
67 Ibid., 85, rightly refuted by Dickson J. (supra, note 1, 266).
supra, note 12, 81.
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COMMENTS – COMMENTAIRES
6. An unreasonable mistake will excuse in offences requiring knowledge
or intention but not those requiring recklessness.6 8
Until such weaknesses in Pickard’s theory are addressed, those
like myself, who find good reason to believe in subjective orthodoxy,
with qualifications, will continue to support decisions such as
Pappajohn.
Don Stuart*
68 Ibid., 85, n. 34.
* Professor of Law, Queen’s University.
