I have to say that I don't agree with that concern.
I think that the new subparagraph 273.2(a)(iii) that's being proposed is simply a codification of existing law. The Supreme Court of Canada has already made clear that where the accused's belief in consent is founded on a mistake about what consent actually means.... You believe that women sometimes say no and they really mean yes. You believe that passivity or a failure to resist is equivalent to consent. All of those are the kinds of factors that are listed in subsections 265(3) or 273.1(2).
Believing that you have consent in those circumstances—if those are the circumstances known to you at the time—is a mistake of law and not a mistake of fact. You're operating on an incorrect legal definition of consent.
The defensive mistake of fact, which the Supreme Court of Canada has made clear, is meant to be an unusual defence. The phrase that was used by the court is that people do not often commit rape “per incuriam”—by mistake. We should be able in most circumstances to tell the difference between sexual assault and consensual sex.
It's meant to be a narrow defence. It's meant to apply only in circumstances where there's a reasonable doubt on the question of whether the accused honestly believed that the complainant had given her voluntary agreement to engage in the sexual activity, that she had done through her words or her conduct some kind of voluntary yes to engage in sexual activity. That's a mistake of fact. That mistake of fact, of course, needs to be accompanied by evidence that the accused took reasonable steps to ascertain the presence of consent.
The scope of the defence remains the same with this amendment. It's as it always was. I think this is just an attempt to clarify that a mistake founded on a mistaken legal definition of consent doesn't exonerate. I think that's the existing law; it's just not reflected in the code.