His Majesty the King v. Bilinski
Jordan Bilinski was acquitted by a jury of sexual assault in Alberta. The complainant, his ex-girlfriend, had invited him over for sex on the express condition that he wear a condom. The evidence was that they had three sexual encounters that evening: oral sex without a condom, vaginal intercourse with a condom followed by ejaculation on her back, and then a final act of intercourse after she again insisted on condom use and put on a new condom. The allegation was that, during that final act, Bilinski removed the condom and ejaculated in her vagina. In his police interview, he admitted she had required condom use, admitted removing it, and said he did so because “it feels better.”
At trial, Bilinski did not advance honest but mistaken belief in communicated consent. The case therefore turned on the complainant’s credibility and reliability, whether she subjectively consented to sex without a condom, and what the Crown had to prove on mens rea. The trial judge told the jury the Crown had to prove, among other things, that Bilinski knew she did not consent, through actual knowledge, recklessness, or wilful blindness. The jury acquitted.
The Alberta Court of Appeal unanimously found errors in the jury charge. The majority held the judge failed to distinguish properly between subjective consent for actus reus purposes and communicated consent for mens rea purposes, and failed to tell the jury that, if it found non-consent, it should have little difficulty finding mens rea. It ordered a new trial. Justice Feehan dissented on the result, concluding the errors were not shown to have materially affected the acquittal. The appeal went to the Supreme Court of Canada as of right.