honest but mistaken belief in consent

The accused applied under section 278.93 of the Criminal Code to adduce evidence of prior sexual activity with the complainant and to use records of communications between them.

The application concerned two counts of sexual assault.

The court dismissed the application, finding that the proposed evidence of prior sexual activity constituted impermissible twin-myth reasoning and was not capable of being admissible.

The court held that the evidence did not address how consent was communicated and therefore could not support a defence of honest but mistaken belief in communicated consent.

Additionally, regarding the allegation involving digital penetration while the complainant was asleep, the court found the evidence irrelevant to consent as an unconscious person cannot provide the required affirmative consent.

The accused was charged with one count of sexual assault arising from a first date with a 16-year-old complainant.

The Crown alleged multiple acts of unwanted sexual touching including fondling of breasts and genitals, and forced oral sex.

The accused admitted to the fondling but denied forcing the complainant to perform fellatio, claiming it was consensual.

The trial judge found the accused guilty of sexual assault for the fondling of the complainant's breasts and inner thigh and crotch area, but acquitted him of the allegation of forced fellatio, finding a reasonable doubt existed regarding whether the oral sex was non-consensual.

The accused, a therapy assistant at a home care agency, was charged with sexually assaulting an elderly male client.

The Crown alleged that the accused touched the complainant's penis without consent during a physiotherapy session.

The accused claimed he was conducting a medical examination to assess for signs of infection or inflammation.

The court found that the accused intentionally applied force to the complainant's penis without communicated consent, that the touching occurred in circumstances of a sexual nature violating the complainant's sexual integrity, and that the accused's explanation for the touching was not credible.

The court rejected the defence of honest but mistaken belief in consent.

The accused was found guilty of sexual assault.

The defendant was charged with sexual assault against a young adult female complainant.

The Crown alleged non-consensual sexual intercourse.

The defendant raised the defence of consent or, alternatively, an honest but mistaken belief in consent.

The trial court found the complainant to be a credible and reliable witness and rejected the defendant's testimony regarding consent.

The court found that the defendant knew the complainant did not consent to sexual intercourse and proceeded anyway, taking advantage of her silence and acquiescence.

The defendant was convicted of sexual assault.

The appellant was convicted of sexual assault against a 21-year-old complainant.

The appellant, aged 53, had invited the complainant to a motel room where he had planned a sexual encounter.

He provided alcohol to the complainant, who became severely intoxicated.

The appellant engaged in sexual contact with the complainant, who testified she was semi-conscious or in and out of consciousness throughout.

The appellant claimed the encounter was consensual and that he honestly believed the complainant was consenting.

The trial judge found the complainant was intoxicated and semi-conscious, to the appellant's knowledge, and therefore could not consent.

The appeal raised three grounds: (1) the trial judge failed to provide adequate assistance to the self-represented appellant by disallowing cross-examination regarding potential collusion; (2) the trial judge failed to provide sufficient reasons regarding the appellant's honest but mistaken belief in consent; and (3) the trial judge misapprehended evidence resulting in an unreasonable verdict.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant, a young person, appealed their conviction for sexual assault and the sentence imposed.

The appellant argued that the trial judge erred in his credibility analysis by failing to consider inconsistencies in the complainant's account and by not considering the defence of honest but mistaken belief in consent.

The Court of Appeal upheld the conviction and sentence, finding that the trial judge properly assessed credibility, was not required to address every inconsistency, and correctly determined that there was no air of reality to the mistaken belief defence given the diametrically opposed versions of events presented by the parties.

A sexual assault trial involving allegations of non-consensual sexual activity.

The Crown alleged that the accused engaged in sexual intercourse without the complainant's subjective consent.

The case hinged on whether the complainant consented to the sexual activity and, alternatively, whether the accused held an honest but mistaken belief in consent.

The trial was divided into three phases: consensual foreplay on a couch, bedroom intercourse, and a second act of intercourse.

The court found reasonable doubt regarding the complainant's lack of subjective consent and dismissed the charge.

The appellant was convicted of sexual assault and sexual assault causing bodily harm.

On appeal, he challenged the trial judge's evidentiary rulings, jury instructions on incapacity and consent, and the trial judge's response to jury questions regarding bodily harm and consent.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the trial judge's discretionary decisions regarding admissibility of prior sexual assault evidence and counselling records, the exclusion of a prior consistent statement, the instruction on incapacity as part of the Crown's case, and the response to jury questions regarding the relationship between bodily harm and consent.

The Crown appealed the acquittal of H.E. on a charge of sexual assault against his wife.

The trial judge had accepted the complainant's testimony regarding the assault but acquitted the accused based on a reasonable doubt about whether he possessed the required mens rea, citing factors including the complainant's delay in reporting and continued sexual relations with the accused.

The appellate court found that the trial judge committed reversible errors by considering an honest but mistaken belief in consent defence that was not raised at trial, by relying on a shared mistaken belief about marital rights that cannot form the basis for such a defence, and by considering factors that were irrelevant to the accused's state of mind.

The court allowed the appeal, set aside the acquittal, and ordered a new trial.

The defendant, an Uber driver, was charged with unlawful confinement and assault after cancelling a trip and rerouting a passenger to Scarborough without her consent.

The Crown alleged the defendant confined the complainant and held her hand against her will.

The defendant was acquitted on both counts.

The court found that while the defendant's conduct was reprehensible, the complainant's evidence regarding what she communicated to the defendant was unreliable and ambiguous, and surveillance video from the LCBO suggested the defendant was not acting as someone knowingly confining a person.

The court concluded there was a reasonable doubt as to whether the Crown had established the necessary mens rea, including wilful blindness.

A young person was charged with sexual assault of a 19-year-old complainant following an incident in a wooded area behind apartment buildings in Scarborough in the early morning hours of July 30, 2016.

The complainant was heavily intoxicated at the time.

The court found that the Crown proved beyond a reasonable doubt that the complainant neither had the capacity to consent nor did she express any consent to the sexual activity.

The court convicted the accused of sexual assault.

The defendant was charged with assault and sexual assault arising from incidents occurring between April 30 and May 7, 2017.

The defendant and complainant were in an on-again, off-again intimate relationship.

The defendant attended the complainant's residence unannounced and intoxicated, conducted surreptitious surveillance of the complainant, forced his way into her apartment, and engaged in a series of assaults and sexual assaults over several hours.

The complainant ultimately acquiesced to sexual intercourse after being subjected to persistent coercive conduct.

The defendant claimed the complainant consented or that he held an honest but mistaken belief in consent.

The court found the defendant guilty of all charges, determining that the complainant did not consent and that the defendant's conduct created a climate of coercion that vitiated any notion of true voluntary consent.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code for conduct occurring on November 27, 2015, in Toronto.

The complainant attended what she believed to be a film audition and participated in two filmed scenes involving sexual activity.

The Crown alleged the accused committed sexual assault by touching the complainant without consent during Scene 1 and by penetrating her vagina without consent during Scene 2.

The trial judge found that the Crown failed to prove lack of consent beyond a reasonable doubt.

The judge concluded the complainant consented to the filmed audition, that any penetrations in Scene 2 were accidental, and that the accused held a reasonable but mistaken belief in consent.

The charge was dismissed.

The accused was charged with two counts of sexual assault against the same complainant on December 20, 2012, and January 22, 2013.

The trial involved a Charter application regarding the admissibility of the accused's police interview, which was ultimately admitted.

The Crown relied primarily on the complainant's evidence and the accused's police statement.

The defence raised the issue of consent and honest but mistaken belief in consent.

The court found that the accused engaged in non-consensual sexual contact on three separate occasions and rejected his defence of honest but mistaken belief in consent, finding instead that he was reckless as to the existence of consent or willfully blind to the possibility that the complainant might not consent.

The accused was charged with sexual assault against a co-worker.

The Crown alleged that the accused kissed and groped the complainant without consent during a lunch break in his pickup truck.

The accused testified that the complainant consented to kissing and that no groping occurred.

The trial judge found the accused's testimony to be contradictory, inconsistent, and illogical, and accepted the complainant's testimony that she did not consent to any sexual touching.

The trial judge also found that the accused failed to take reasonable steps to ascertain consent and was reckless or wilfully blind to the absence of consent.

The accused was convicted of sexual assault.

The accused, a graduate student at York University, was charged with sexual assault under s. 271 of the Criminal Code.

The complainant, also a graduate student, alleged that after an evening of drinking at two bars with mutual friends, the accused sexually assaulted her at his apartment without her consent.

The accused's defence was that the sexual activity was consensual, characterizing the complainant as the sexual aggressor throughout the evening.

The trial judge rejected the accused's evidence as incredible and unbelievable, finding it inconsistent with the probabilities and the complainant's credible testimony.

The judge found that the accused, motivated by anger and a desire for control after the complainant's friend declined to join them for a threesome, took advantage of the intoxicated and vulnerable complainant.

The judge convicted the accused of sexual assault, emphasizing that consent requires affirmative communication and that the absence of physical resistance does not constitute consent.

Two young persons were charged with sexual assault and gang sexual assault, as well as robbery with violence, arising from an incident on September 20, 2009, in Toronto.

The complainant, a sex worker, engaged in sexual activity with four young men in a stolen red Honda vehicle and was subsequently beaten and robbed.

The court found that while the defendants participated in the robbery, the Crown failed to prove sexual assault beyond a reasonable doubt.

The court determined that although the complainant may have had subjective misgivings about the sexual activity, her outward conduct and words were consistent with consent, and the defendants could have held an honest but mistaken belief in her consent.

The court rejected the Crown's argument that consent was vitiated by fraud or the subsequent robbery.

The accused was charged with sexual assault.

The Crown alleged that the accused forced sexual intercourse on the complainant against her will.

The accused admitted to sexual intercourse but claimed it was consensual.

The court found the complainant's evidence credible and rejected the accused's testimony as unreliable due to material inconsistencies and self-serving assertions.

The court found that the complainant did not consent and was unambiguous in her resistance.

The court also rejected the defence of honest but mistaken belief in consent, finding the accused was at least reckless in responding to the complainant's clear objections.

The accused was found guilty of sexual assault.

The accused was charged with sexual assault following an incident on October 25, 2010.

The complainant, a 28-year-old woman with mental health conditions, alleged that the accused engaged in sexual intercourse with her without consent after she repeatedly said "no" to his advances.

The accused, a 43-year-old man with schizophrenia, claimed the complainant acquiesced to sexual activity.

The court found the accused guilty, accepting the complainant's evidence that she did not consent and rejecting the accused's testimony as inconsistent with his police admissions.

The judgment provides comprehensive analysis of the actus reus and mens rea elements of sexual assault, including the requirement for affirmative communication of consent and the rejection of the defence of honest but mistaken belief in consent based on silence or ambiguous conduct.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code.

The complainant testified that she awoke to find the accused engaged in sexual activity with her while she was asleep in her bedroom.

The accused claimed the complainant was kissing him back and that he believed she had consented.

The court found that the complainant did not consent as she was incapable of consenting while asleep, and that the accused failed to take reasonable steps to ascertain consent.

The court rejected the defence of honest but mistaken belief in consent, finding no air of reality to the defence given the circumstances and the accused's self-induced intoxication.