honest but mistaken belief in consent

The accused was charged with sexual assault arising from an encounter with a complainant he met through a dating application.

The court applied the W.(D.) framework to evaluate conflicting testimony and found that while the complainant’s evidence about further sexual conduct was credible, the Crown had not proven those allegations beyond a reasonable doubt.

However, the court concluded that the accused initiated a kiss without consent and without taking reasonable steps to ascertain consent.

The defence of honest but mistaken belief in communicated consent had no air of reality.

The accused was therefore convicted of sexual assault based on the non-consensual kiss.

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.

The accused was tried for sexual assault after admitting intercourse with the complainant but asserting it was consensual.

The Crown relied primarily on the complainant’s testimony and circumstantial corroboration from post‑incident communications with relatives.

The court applied the W.(D.) credibility framework and the doctrine of honest but mistaken belief in consent.

It accepted the complainant’s account that she resisted and rejected the accused’s evidence as unreliable and inconsistent.

The court concluded the accused was at least reckless as to consent and found him guilty of sexual assault.

The accused was charged with sexually assaulting the complainant after a night of drinking among friends where the complainant became severely intoxicated and ill.

The complainant testified that she lost consciousness intermittently and awoke to the accused engaging in sexual activity without her consent, repeatedly telling him to stop.

The court rejected the accused’s evidence due to numerous deliberate lies and inconsistencies, finding his testimony wholly unreliable.

The complainant’s evidence was accepted as credible and corroborated by medical evidence, witness testimony, and surrounding circumstances.

The court held that the complainant lacked the capacity to provide ongoing consent due to intoxication and illness, and that the accused took no reasonable steps to ascertain consent.

The defence of honest but mistaken belief in consent was found to have no air of reality.

The appellant was convicted of sexual assault after engaging in sexual activity with the complainant, who mistakenly believed he was her boyfriend.

The trial judge rejected the defence of honest but mistaken belief in consent, finding the appellant failed to take reasonable steps to ascertain consent.

On appeal, the Court of Appeal found that the trial judge misapprehended material evidence regarding the appellant's knowledge of the complainant's intoxication, the visibility in the tent, the timeline of events, and physical differences between the appellant and the boyfriend.

These errors undermined the trial judge's credibility assessment and reasonable steps analysis, resulting in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The accused, charged with sexual assault, brought an application under s. 276.2 of the Criminal Code seeking permission to cross-examine the complainant about prior interactions and alleged sexual activity between them.

The defence argued the evidence was relevant to the defence of honest but mistaken belief in consent and necessary to explain the accused’s state of mind.

The court held that certain prior interactions, including cuddling and holding, the complainant placing the accused’s hand on her breast, and the complainant sending a nude photograph, were admissible because they were relevant and their probative value outweighed the prejudicial effect under s. 276(2).

However, the accused was not permitted to cross-examine the complainant about her alleged statement that she had been raped by her ex-husband.

The application was therefore granted in part.

Two accused were charged with sexual assault and gang sexual assault following allegations that the complainant was sexually assaulted by multiple men in an apartment over approximately thirty-one hours.

The trial judge found the complainant’s evidence unreliable regarding how she arrived at the apartment but accepted core aspects of her testimony concerning non-consensual sexual activity, supported by DNA evidence and contemporaneous reporting.

The court concluded that one accused engaged in multiple acts of non-consensual sexual intercourse and other sexual activity with the complainant and rejected the defence of honest but mistaken belief in consent.

The second accused was found to have touched the complainant’s breast in a sexual manner without consent based on DNA evidence and credibility findings.

However, the Crown failed to prove that the accused were parties to each other’s assaults for the purpose of the gang sexual assault charges.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code after a workplace encounter involving a non-consensual French kiss and touching of the complainant’s breast.

The defence argued honest but mistaken belief in consent based on earlier social contact and alleged reactions by the complainant.

The court applied the principles from Ewanchuk and J.A. and held that assumptions or speculation about consent cannot ground the defence of honest but mistaken belief in consent.

The court found the complainant credible and concluded that no evidence supported a communicated consent to the sexual activity.

The Crown proved beyond a reasonable doubt that the complainant did not consent and that the accused acted with recklessness or willful blindness regarding consent.

The appellant appealed his conviction and sentence for a sexual offence.

He argued the trial judge erred by relying on the complainant's prior consistent statements, treating his non-cooperation with police as consciousness of guilt, misapplying reasonable doubt regarding his physical limitations, and ignoring exculpatory portions of his statement.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not rely on the prior statements for credibility, properly addressed the physical limitations, and considered the exculpatory statement.

The sentence appeal was also dismissed as no error was found in the sentence imposed.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in rejecting his defence of honest but mistaken belief in consent.

The complainant had repeatedly refused sex before finally saying 'okay' after the appellant persisted.

The Court of Appeal held that the complainant's final 'okay' was ambiguous in the context of her prior refusals, triggering the appellant's obligation to take steps to ascertain whether there was a reasonable basis for his belief in consent.

As the appellant took no such steps, the appeal was dismissed.