Canada Case Law

R. v. S.M.

Court

Nova Scotia Court of Appeal

The trial judge erred as a matter of law by conflating a complainant's lack of desire with absence of voluntary agreement and by failing to apply the correct s.273.2 test—namely whether the accused honestly believed in consent and took reasonable steps to ascertain it; accordingly convictions on Counts 1 and 2 were set aside and, because the appellant had served his sentence and a new trial would not be in the interests of justice, a stay of proceedings was ordered.

Source excerpt

• Consent
• Honest but mistaken belief
• Communicated consent
• Reasonable steps to ascertain consent
• Duress and vitiated consent
• Stay of proceedings

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R. v. Hu

Court

Supreme Court of British Columbia

The complainant's evidence was found credible and established lack of consent; she submitted to oral sex out of fear of force contrary to s.265(3)(b), vitiating consent and satisfying the actus reus of sexual assault. The accused failed to take reasonable steps to ascertain consent and his testimony did not raise an air of reality for honest but mistaken belief; therefore conviction on Count 1 is required. The Crown did not prove beyond a reasonable doubt that the accused intentionally confined the complainant, so acquittal on Count 2 follows.

Source excerpt

• Sexual assault
• Consent
• Honest but mistaken belief
• Forcible confinement
• Credibility assessment
• Publication ban

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R. v. H.S.

Court

Court of Appeal for Ontario

Ontario Court of Appeal upheld a sexual assault conviction, finding no air of reality to an honest-but-mistaken-belief instruction and no error in the jury charge.

• Consent
• Honest but mistaken belief
• Mens rea
• Jury instructions
• Motive to fabricate
• Prior consistent statement

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R. v. Schank

Court

British Columbia Court of Appeal

The Court of Appeal dismissed Mr. Schank’s appeal from a sexual assault conviction, rejecting claims of misapprehended evidence, burden shifting, and an air of reality error.

• Consent
• Honest but mistaken belief
• Credibility assessment
• Misapprehension of evidence
• Air of reality
• Post-incident demeanour

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R. v. Stewart

Court

Nova Scotia Court of Appeal

The Court found the trial judge’s finding of subjective non-consent to all anal sexual activity was unreasonable because it rested on circumstantial inferences without excluding the reasonable possibility that the complainant consented during a blackout; the differing findings that she consented to non-anal activity but not to all anal activity were illogical on the accepted evidence, and the Court exercised its residual discretion to enter an acquittal because a new trial would be unfair given prior findings favorable to the accused and the risk of impermissible relitigation.

Source excerpt

• Consent
• Circumstantial evidence
• Unreasonable verdict
• Residual discretion to acquit
• Issue estoppel
• Honest but mistaken belief

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R v MAM

Court

Nova Scotia Provincial Court

Judge found both complainant and accused equally credible on core facts; prosecution did not prove beyond a reasonable doubt that the accused invited sexual touching on the two earlier occasions (s.152) and the accused's credible evidence that the complainant brought a condom, initiated oral sex and that he made ongoing inquiries created reasonable doubt on the s.271 sexual assault charge and established an air of reality to an honest but mistaken belief defence; accordingly acquittals were entered on both counts.

Source excerpt

• Consent
• Honest but mistaken belief
• Invitation to sexual touching
• Close-in-age exception
• Narrative evidence
• Delayed reporting

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R. v. T.B.

Court

Supreme Court of British Columbia

The court found T.B. guilty of sexual assault, holding that G.F. did not consent to penetrative sex on January 11, 2023 and that no honest belief in communicated consent was made out.

• Consent
• Honest but mistaken belief
• Mens rea
• Actus reus
• Credibility and reliability
• Statutory limits on defences (s.273.2)

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R. v. J. B.

Court

Court of Appeal for Ontario

The evidence supported an air of reality to the appellant's defence of honest but mistaken belief in communicated consent up until the complainant fell asleep or passed out, and because the trial judge failed to put that defence to the jury the conviction could not stand and a new trial was required.

Source excerpt

• Consent
• Honest but mistaken belief
• Capacity to consent
• Jury charge
• Air of reality

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R. v. Tyabji-Sandana

Court

Supreme Court of British Columbia

El acusado fue sentenciado por agresión sexual a dos años menos un día en la comunidad, con libertad condicional, órdenes de ADN, SOIRA y otras condiciones estrictas.

• Sexual interference
• Age of consent
• Honest but mistaken belief
• Conditional sentence
• Dna order
• Sex offender registry

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R. v. Rusaw

Court

Court of Appeal for Ontario

The trial judge's credibility findings were supported by the evidence; the appellant took no reasonable steps to ascertain the complainant's capacity to consent and therefore the defence of honest but mistaken belief was precluded under Crespo, so the conviction is upheld.

Source excerpt

• Consent
• Honest but mistaken belief
• Credibility findings
• Publication ban
• Trial evidence assessment

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