The Crown brought a motion during a jury trial seeking to prevent the accused from advancing the defence of honest but mistaken belief in communicated consent.
The issue was whether there was sufficient evidence to meet the “air of reality” threshold under s. 265(4) of the Criminal Code.
Applying the governing test from appellate jurisprudence, the court held that the trial judge must assume the defence evidence is true and determine only whether a properly instructed jury could acquit if it believed that evidence.
The court found that the accused’s testimony provided some evidence capable of supporting the defence, including evidence relating to the complainant’s conduct and inconsistencies in prior statements.
The court ruled that the defence met the minimal threshold and could be put to the jury.
