This week’s top three summaries: R v SM, 2026 NSCA 30: s271 and #persistent badgering, R v Stark, 2026 SKCA 48: s.8 non-consent #inferences, R v Skiffington, 2026 BCCA 151: s715.1 #factors

R v SM, 2026 NSCA 30

[April 13, 2026] Sexual Assault: Persistent Badgering is Not an Offence [Reasons by Farrar J.A. with Wood C.J.N.S. and Gogan J.A. concurring]

AUTHOR’S NOTE: Consent in sexual assault law does not require desire; it requires a voluntary agreement to engage in the sexual activity. While, in most cases, consent and desire align, the law recognizes that they are distinct concepts. A person may agree to sexual activity for a variety of reasons—even in the absence of genuine desire.

This case illustrates that distinction. The evidence supported the possibility that the complainant did not want to engage in sexual activity, but nevertheless voluntarily agreed to it. The accused obtained consent through persistent badgering. In such circumstances, the absence of desire does not equate to the absence of consent.

The decision serves as an important reminder that the legal inquiry must remain focused on whether there was a voluntary agreement, not on whether the complainant subjectively wanted the encounter.

Takeaway:
Lack of desire is not determinative. The Crown must prove absence of consent, not simply that the sexual activity was unwanted.

Introduction

[1] The appellant S.M. and the complainant (S.K.) were married from September 2013 to August 2017.

[2] The complainant alleged that throughout the marriage there were numerous incidents of non-consensual sexual activity and assaults.

[5] On July 6, 2021, the trial judge rendered an oral decision1 convicting the appellant of Counts 1, 2 and 4….

[7] Only Counts 1 and 2 are in issue on this appeal relating to the sexual assaults. The appellant does not appeal his conviction on Count 4 for assault.

Facts

[12] The complainant alleged there were incidents of non-consensual sexual activity throughout the relationship . As noted by the trial judge, she mostly described these incidents in general terms2 and was non-committal about the period of time over which they occurred.

[13] However, she was able to provide detailed descriptions of two incidents: an allegation of forced oral sex, which formed the basis of Count , in which she claimed that the appellant pressed his penis against her mouth and persisted despite her repeated refusals; and an allegation that the appellant pulled down her pants while she was sleeping and had intercourse with her while she was protesting and crying.

[14] The appellant testified the couple had experienced difficulties with vaginal penetration from the outset of the relationship and that there was continual discussion and negotiation about how they would engage in sexually intimate acts. He said intercourse was rare. In regard to the incident of oral sex, he denied the complainant’s account and described the encounter as consensual.  In crossexamination he said that more often than not he had to “persist” to obtain consent. [Emphasis by PJM]

[17] The trial judge did not accept that the sexual assaults unfolded in the manner alleged by the complainant. He found, with respect to both the allegations of forced intercourse and the allegation of forced oral sex, there was tension caused by the appellant’s desire for an active sex life and the difficulties and pain experienced by the complainant during intercourse. He found there was a pattern of the appellant trying to talk her into having sex until he overcame her resistance by his persistence.[Emphasis by PJM]

[18] The trial judge ultimately convicted the appellant because the complainant’s consent to sexual activity was obtained after she had “given in. [Emphasis by PJM]

[21] With respect to the allegations of intercourse that formed the basis of Count 1, the trial judge did not make distinct factual findings about any specific incident. He concluded that the evidence established there had been multiple instances of the complainant “refusing and then yielding” to the appellant’s persistent pleadings, begging, incentivizing and invoking religious obligations:

[22] The trial judge did not clearly set out his factual findings with respect to any of the Count 1 incidents. As noted, he described the complainant as “a poor historian for detail” and internally inconsistent.11 Therefore her testimony cannot reliably be used to infer controverted factual findings that were not explicitly resolved by the trial judge.

[23] The trial judge does not describe, and does not seem to find, that there was any instance of intercourse in which the appellant persisted in having physical contact without an expression of agreement by the complainant. The trial judge repeatedly describes the pattern, across all the instances, of the appellant responding verbally to the complainant’s refusal by imploring her to consent until she gave in….

[28] The common ground between Count 1 and Count 2 is the complainant consenting only after being badgered into agreement. This is reiterated in the Reasons for Sentence,  where the trial judge states:

In my assessment he rationalized that the conversations they had provided him the right to proceed […]

[29] It is also made clear when the trial judge proceeds to his analysis of the defence of honest but mistaken belief in consent. He determines that the defence is not available to an accused who knows that consent was obtained as a result of a person “giving in”:

[285] The problem for S.F.M. is that Canadian law as it relates to the requirement to have a valid consent is very strict in its interpretation, as I laid out earlier in my recitation from other cases. S.F.M.’s own testimony, and in particular some of his answers in reply to the prosecutor’s questions, make it clear that he knew that S.K. was, on many occasions, communicating clearly that she did not want to have intercourse with him and that her ultimate consent was obtained not as a willing partner but as a person who had given in. Language such as “let’s get it over” or negotiating to perform a different sex act are consistent with a lack of a valid consent to intercourse.

[36] The trial judge appeared to conclude that the appellant overcame the complainant’s resistance only by persistent begging and pleading. For ease of reference, I will repeat those portions of his decision:

[282] S.K. says that she consistently said “No” to S.F.M.’s approaches to her for intercourse. They both agreed that there was a pattern of him trying to talk her into it, whether it was, as he said, a negotiation, or by pleading or begging or incentivizing I think was a word that was used. Essentially, he overcame her resistance by being persistent and sometimes invoking what he saw as her religious obligations to provide him with sex.

[Emphasis added]

[40] The trial judge failed to separate the factual question of whether the complainant wanted to engage in sexual activity from the factual question of whether she voluntarily agreed to do so. Consent is not determined by the complainant’s wanting to engage in the activity, but by whether she voluntarily agreed to engage in it. That should have been the focus of the trial judge. He should have assessed whether the conduct of the appellant crossed a line such that her agreement was prevented or vitiated, for instance by duress or threats (s. 265(3)(b)).[Emphasis by PJM]

[41] Instead, the trial judge chose to focus on the appellant’s knowledge that the complainant did not want to engage in sexual activity and that he knew she was only acquiescing to his wishes as a result of his pleading.

[42] This represents an expansion of criminal liability for sexual assault. Communicated consent is invalid if it is not voluntary or is forcibly coerced or is obtained when the complainant is incapable of consenting. In those situations, the complainant has involuntarily submitted to the will of the accused. Here, the trial judge did not find any such factors were present. At the risk of being repetitious, he made a legally incorrect determination that consent is also invalid if “ultimate consent was obtained not as a willing partner but as a person who had given in.”[Emphasis by PJM]

[44] Consent is not invalidated by the fact that a complainant was convinced or persuaded to engage in sexual activity.

[45] Criminal liability flows from the accused’s persistence not only in trying to convince the complainant, but sexually touching her without having obtained consent. As discussed in R. v. TR, 2016 ABCA 355:

[27] The final ground of appeal is that the trial judge determined that persuading someone to have sex was itself criminal conduct. This argument overlooks the key findings of the trial judge. The appellant was not convicted of pressuring the complainant. He was convicted of persisting in sexual touching after the complainant had expressed her unwillingness to engage in the activity, and without making certain that she had changed her mind. As the trial judge noted, capitulation is not consent. Trying to convince someone to engage in sexual activity does not remove the requirement to ensure that the other person is actually consenting to the activity.

[46] An initial refusal by a complainant to continue engaging in sexual activity does not constitute an absolute bar to the defence of honest but mistaken belief in communicated consent. A complainant is entitled to change her mind. To properly assess whether the defence had been made out, the trial judge needed to examine what occurred after the complainant expressed refusal: (a) whether the appellant took reasonable steps to ascertain that the complainant was consenting when sexual activity resumed; (b) whether he honestly believed she was consenting to resume; and (c) whether there was any common law or statutory bar that made her consent ineffective.[Emphasis by PJM]

[47] The trial judge’s only reason for finding that the conversations did not constitute reasonable steps was, in essence, that the appellant was knowingly seeking permission to engage in unwanted sexual activity. This conflated consent with desire, and it confused the test for reasonable steps with the various tests for ineffective consent. As a result, the trial judge failed to assess whether the complainant’s ultimate consent amounted to a voluntary agreement to engage in further sexual activity; and whether her ultimate consent was rendered ineffective due to duress, threats, or other factors recognized in the common law and s. 265(3) or s. 273.1.[Emphasis by PJM]

[48] The trial judge did not find that the appellant deprived the complainant of the ability to make a voluntary decision. Nor did he foreclose the possibility that the appellant held an honest belief in the complainant’s voluntary agreement to continue the sexual activity.

Disposition

[53] In R. v. Conway, Justice L’Heureux-Dubé writing for the majority held there are times when the affront to fair play and decency outweighs society’s interest in the effective prosecution of criminal cases:

[…] The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

[54] This is one of those cases where a stay is warranted.

Conclusion

[55] I would allow the appeal and stay the charges.

R v Stark, 2026 SKCA 48

[April 9, 2026] Charter s.8: No Inferences from Lack of Consent [Reasons by Caldwell J.A. with Drennan and Bardai JJ.A. concurring] 

AUTHOR’S NOTE: An accused’s refusal to consent to a search is the exercise of a constitutional right. Like the right to silence under s. 7 of the Canadian Charter of Rights and Freedoms, it cannot ground an inference of guilt.

In this case, the trial judge’s jury instruction left open the possibility that jurors could conclude the accused “had something to hide” because he declined to consent to a search. That was a clear error. Permitting such reasoning would effectively penalize the exercise of constitutional protections, rendering them hollow in practice.

The appellate court set aside the conviction, emphasizing that no adverse inference may be drawn from the assertion of Charter rights—whether through silence or refusal of a search.

Notably, the error warranted intervention despite the absence of any objection at trial, underscoring the fundamental nature of the principle.

Takeaway:
Constitutional rights cannot be converted into inculpatory evidence. Any instruction that leaves open such reasoning risks undermining the fairness of the trial and will attract appellate scrutiny.

I. OVERVIEW

[1] Jeffrey Leonard Stark was convicted by a jury of unlawful confinement and sexual assault. He appeals against his convictions, arguing that the judge inadequately instructed the jury on two matters. Mr. Stark asks us to allow his appeal, quash his convictions and order a new trial.

[3] Down the second avenue, Mr. Stark takes issue with the adequacy of the judge’s instructions relating to evidence that the Crown had led about his consent to a search of his residence and then him not being available to allow that search to occur. Mr. Stark asked the judge to instruct the jury about this evidence in a way that would not preclude positive inferences being drawn from the fact that he had consented to a search, and the judge instructed the jury as he requested. At the Crown’s request, the instruction also did not preclude the jury from drawing an inculpatory inference from that evidence. Describing his unavailability as the withdrawal of his consent to the search, Mr. Stark says the instruction to the jury was contrary to law because the exercise of a Charter right may not be used against a person in criminal proceedings. I agree that, notwithstanding that it was consistent with Mr. Stark’s trial strategy, the full instruction was contrary to law.

[4] In short, the second ground of appeal amounts to an error of law that undermines the soundness of the jury’s verdicts. As such, I would allow the appeal and order a new trial.

B. The consent to search

[17] When he was arrested, Mr. Stark provided the police with a warned statement. The interviewing officer testified that Mr. Stark had “readily agreed” to have the interior of his suite photographed and had signed a consent for that purpose. When Mr. Stark was unavailable at an agreed time for the search, the police made a few attempts to arrange another time to take those photos, but they were unable to speak with him. There was also evidence that the police would not conduct an interior search of the suite in Mr. Stark’s absence because they understood that he had the right to withdraw his consent at any time during the search. The police did not complete the interior search with Mr. Stark’s assistance and did not obtain a search warrant authorising them to do so without his consent.

C. Consent to a search and an incomplete search

[36] Given the discussion with counsel, immediately after she had reviewed the testimony about Mr. Stark’s consent to a search and his unavailability at the time of the search, the judge provided an instruction to the jurors about what they could do with that evidence:

Accordingly, if you accept that Mr. Stark provided the written consent to search but was not home between 3:45 and 4:00 P.M. and did not return any of Sergeant Maloney’s messages, it is up to you to determine whether there are any reliable inferences you can draw from that evidence and whether those inferences assist you in determining whether the Crown has proven the offences beyond a reasonable doubt.

(Emphasis added)

[37] After she delivered the charge to the jury, the judge asked counsel if they any had concerns with its content. Neither did.

[40] In Mr. Stark’s case, while the judge tailored her instruction in accordance with the discussion with counsel, revisiting the adequacy of that instruction on appeal does not involve disavowing any of Mr. Stark’s evidence or amount to a wholesale reversal of his trial strategy, like it did in R v MacDonald. It relates to the Crown’s evidence and the uses to which it could be put. More specifically, it involves an examination of the lawfulness of the aspect of the jury instruction the Crown sought and obtained in respect of the post-offence evidence it had tendered.

[41] As such, while I conclude that the circumstances do not bar Mr. Stark’s arguments under this ground, I nevertheless agree that “considerable deference is warranted” to the judge’s decision to give an instruction to the jury based on the positions the parties took at trial (R v Smith, 2018 SKCA 42 at para 63; see also United States v Hollaus, 2022 BCCA 272 at para 28, leave to appeal to SCC refused 2023 CanLII 6104; R v Kimberley, 2001 CanLII 24120 at para 56, 157 CCC (3d) 129 (ONCA); R v Moore, 2017 ONCA 947 at para 15).

2. The instruction on the inferences available to the jury

[42] Turning to the substance of Mr. Stark’s submissions under this ground, he argues that the judge erred in law by telling the jury that they could draw an inference consistent with guilt from his consent and subsequent failure to be present when the police had arranged to photograph his suite. Relying on R v Chambers, 1990 CanLII 47, [1990] 2 SCR 1293 (SCC), and R v Turcotte, 2005 SCC 50, Mr. Stark submits that evidence of his exercise of constitutional rights (i.e., the right to consent and, specifically, to withdraw his consent to a search) could not be used against him as evidence of guilt or evidence consistent with guilt. In other words, he says the jury should not have been told that inculpatory inferences were available on that circumstantial evidence.

[43] As noted above, the judge did not express the instruction in terms of the availability of inculpatory inferences. In her charge, the judge properly said it was up to the jury to decide whether to accept the evidence of Mr. Stark’s consent to the search and his subsequent failure to respond to the police. However, she further instructed the jury that, if that evidence was accepted, they had to determine whether there were any reliable inferences that could be drawn from it. She then correctly reinforced with the jury that Mr. Stark was under no obligation to allow the police to search his residence and that he could revoke his consent at any time. Nonetheless, this means that the instruction left it open for the jury to use Mr. Stark’s consent and subsequent failure to respond to the police as circumstantial evidence from which they could draw an inculpatory inference. The question is whether that amounted to an error of law. [Emphasis by PJM]

[45]….not only did Mr. Stark not dispute the fact that he had knowingly consented to a search, but his trial strategy also depended on the jury accepting that as fact. Whether he fully understood that he had the right to withdraw that consent, he effectively did so because he thwarted the police from conducting that search by being unavailable. That is not disputed.

[46] Regardless, the judge did not tell the jury that Mr. Stark had withdrawn his consent or had frustrated the search. She simply reviewed the evidence of his consent to a search and of the police unsuccessfully attempting to arrange for the search to occur. While Mr. Stark wanted to rely at trial on his cooperation with the police and the fact they had not obtained a search warrant in his defence, like the scenarios reviewed in R v Chambers and R v Turcotte, the Crown sought to rely on his exercise of the s. 8 Charter right as proof of guilt, or to at least leave the door open for the jury to draw that conclusion from the after-the-fact evidence.

[47] I acknowledge that the judge did not instruct the jurors that, if they found Mr. Stark had failed to cooperate with the police, they could conclude that he had something to hide or was guilty. She certainly did not invite them to draw the inference that Mr. Stark was guilty because he had consented or implicitly exercised his right to revoke his consent to a search. She reinforced that he absolutely had the right to do that. It is clear from her charge that the judge was careful not to influence the jury members to draw any inference from that evidence, one way or the other. In my view, the judge presented the evidence in a comprehensible form and left it open to the jury to draw any available inference – and therein lies the error of law. [Emphasis by PJM]

[49]….Addressing a similar albeit more egregious circumstance, in the jury trial in R v Calnen, Moldaver J. writing for the majority of the Supreme Court of Canada said:

[113] In addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence [i.e., after-the-fact conduct evidence] is tendered and to articulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use. Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.
[118] However, in addition to this general instruction, trial judges should consider whether any further specific limiting instructions or cautions may be required to counter any of the specific reasoning risks associated with the particular after-the-fact conduct at issue. In some cases, courts have recognized that certain types of evidence have other reasoning risks associated with them. For example, additional guidance may be necessary where after-the-fact conduct relates to the accused’s demeanour, false alibis or lies put forward by the accused, or the silence or refusal (or, conversely, the readiness) of an accused to take part in an investigation: see [D. M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim LQ 275]. Individual attention to the actual evidence at issue is necessary because any caution or limiting instruction is also context and fact specific, and needs to be fashioned to meet the specific risks posed by the particular type of after-the-fact conduct at issue in any given case.

(Emphasis added)

[50] I am aware that the prosecutor did not invite the jury in his closing submissions to reason as if Mr. Stark had intentionally avoided the police attendance at his suite so as to prevent them from confirming the complainant’s evidence or as if it were evidence of a guilty conscience. Notwithstanding his earlier description of it, he did not say that the evidence suggested that Mr. Stark had something to hide. The prosecutor made only indirect comments about Mr. Stark’s failure to facilitate the search, aimed at undermining the credibility and reliability of the only witness for the defence and at detracting from the defence proposition that the failure by the police to obtain a search warrant raised doubt about the strength of the Crown’s case.

[51] In summary, in the context of this trial, there was nothing wrong with the judge leaving the evidence in question with the jury in a comprehensible form for them to accept or reject and, if accepted, to consider whether it led them to draw any inferences and to determine the weight to be given to the inferences drawn (R v White, 1998 CanLII 789 at para 27, [1998] 2 SCR 72 (SCC)). In its fact-finder role, the jury was entitled to consider the evidence as part of the narrative and because it was bound up with the defence theory and Mr. Stark’s efforts to impeach the complainant’s credibility. However, it was not legally correct to leave open the possibility that the jury could infer guilt or a guilty conscience from that evidence. Because it was within his constitutional right to do so, no inculpatory inference could be drawn from the fact Mr. Stark had implicitly withdrawn his consent to the search. In these circumstances, the judge should have given the jury a specific limiting instruction to counter the impermissible reasoning risk associated with the evidence. [Emphasis by PJM]

[52] I would allow this ground of appeal pursuant to s. 686(1)(a)(ii) of the Criminal Code, finding legal error in the jury instruction in question.

IV. DISPOSITION

[53] I would allow the appeal pursuant to s. 686(1)(a)(ii) of the Criminal Code, and, pursuant to s. 686(2), I would quash the conviction and order a new trial.