Content warning: sexual assault
This case is about how courts explain the law of consent and sexual assault to juries.
LEAF is intervening before the Supreme Court of Canada.
FACTS
In this case, the accused removed his condom during intercourse, even though condom use was a condition to the complainant’s consent. At trial, the jury was tasked with deciding first whether the Crown had proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in question. If so, the jury would then have been required to decide whether the Crown had proven beyond a reasonable doubt that the accused knew that the complainant did not consent. The jury acquitted the accused.
The Alberta Court of Appeal ruled that the trial judge failed to provide the jury with a crucial instruction, called the “little difficulty” instruction. This instruction is the following: if the jury is satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in question, then the jury should have “little difficulty” in concluding that the accused knew that the complainant was not consenting. Because the trial judge did not provide this instruction, the Alberta Court of Appeal ordered a new trial.
Now, the Supreme Court is considering how or whether jury instructions in sexual assault cases should change, and what exactly the Crown must prove when arguing that the accused knew that the complainant wasn’t consenting.
ARGUMENTS
LEAF told the Court that a clear and legally accurate jury instruction is critical to making sure that jurors do not rely on myths and stereotypes about sexual assault survivors when coming to a decision. Our laws have been developed to guard against all-too-common falsehoods about sexual assault – for example, that if a complainant agreed to some sexual activity, she must have agreed to everything that followed. But if a jury isn‘t equipped with a clear and accurate understanding of those laws, there is a risk that pervasive stereotypes will play a role in their decision-making.
LEAF argued that the “little difficulty” instruction fails to dispel the harmful, pervasive myths about sexual assault that operate in the background of sexual assault trials. We also argued that the instruction tells jurorswhat to conclude, instead of providing them with the information required to independently assess the issue based on the evidence presented.
To replace the little difficulty instruction, LEAF proposed a more clear and accurate jury instruction that directly confronts stereotypical assumptions and provides jurors with a clear legal basis to set them aside.
OUTCOME
The Supreme Court heard arguments in this case on May 22, 2026. The Court reserved its decision.
Read LEAF’s factum.
LEAF is grateful to Neha Chugh (Chugh Law) and Reakash Walters (Queen’s University), pro bono counsel in this case.
LEAF’s interventions are also guided by case committees with relevant expertise. LEAF is grateful for the case committee members who supported this intervention: Grace Ajele, Ula-Erin Chauvet, Daphne Gilbert, Saambavi Mano, Andie Marks, and Adriel Weaver.