The Effect of R. v. Morrison on Sexual Assault Law: Is the Reasonable Steps Requirement an Articulation of Mens Rea or a Statutory Bar on the Defence of Mistaken Belief?

Abstract

The Supreme Court of Canada’s interpretation of the reasonable steps requirement for the offence of child luring in R. v. Morrison has undermined the law of sexual assault. Appellate courts have applied Morrison to sexual assault cases, insisting that the fault element for sexual assault is purely subjective. Accordingly, these courts have held that the accused’s failure to take reasonable steps to ascertain consent does not inexorably prove the mens rea for sexual assault. This result undermines reforms to sexual assault law, creates needless analytical complexity, and violates the presumption of innocence. All of these deleterious results can be avoided if courts interpret the mens rea for sexual assault as a subjective-objective standard of fault. However, Morrison stands squarely in the way of this simple solution. The Supreme Court’s interpretation of the reasonable steps requirement in Morrison cannot be distinguished from the reasonable steps requirement for sexual assault. Furthermore, as a matter of horizontal stare decisis, the Supreme Court is unlikely to overturn Morrison despite its flaws.