During a sexual assault trial, the court held a ruling on whether the defence of honest but mistaken belief in communicated consent should be left with the jury.
The alleged assault occurred in a dark room where multiple people were sleeping after consuming alcohol.
The accused claimed the complainant initiated sexual contact, while the complainant testified she awoke to being assaulted and did not consent.
Applying the air of reality test, the court found that the accused's evidence, if assumed true, put the defence in play.
The court ruled the defence would be left with the jury, as it was for the jury to assess whether the accused took reasonable steps to ascertain consent.
