The appellant appealed a unanimous decision of the Alberta Court of Appeal that set aside a trial acquittal on one count of sexual assault and substituted a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code.
The trial judge had erred in law both by admitting evidence of the complainant's prior sexual activity and by finding an air of reality to the defence of honest but mistaken belief in communicated consent.
The Supreme Court dismissed the appeal, holding that the defence had no air of reality and the prior sexual activity evidence was inadmissible, such that the Court of Appeal properly substituted a conviction.
