The accused was convicted of sexual assault after having intercourse with his intoxicated second cousin.
At trial, the accused claimed actual consent, while the complainant testified she was too drunk to remember but would not have consented.
The trial judge did not instruct the jury on the defence of honest but mistaken belief in consent.
The Court of Appeal ordered a new trial, finding the defence had an 'air of reality'.
The Supreme Court of Canada dismissed the Crown's appeal, holding that the combined evidence of the accused's belief in consent, the complainant's lack of memory, and the absence of violence provided sufficient plausible evidence to give the defence an air of reality, obligating the trial judge to put it to the jury even though it was not raised by defence counsel.
