DATE: 20040130
DOCKET: C37907

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - DOUG WITTY (Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Frank Addario for the appellant

Feroza Bhabha for the respondent

HEARD & ENDORSED:

January 29, 2004

On appeal from the conviction imposed by Justice Gladys I. Pardu of the Superior Court of Justice dated November 16, 2001.

APPEAL BOOK ENDORSEMENT

[1] Assuming, without deciding, that the trial judge was required to put the defence of honest but mistaken belief in consent, we were not persuaded that the trial judge erred in her instruction to her jury. We do not accept the submission that when instructing the jury on recklessness, it was necessary, in the context of this case, for the trial judge to qualify the degree of risk known to the appellant that the complainant was not consenting. Read as a whole, we are satisfied that the instructions did not invite the jury to apply an objective standard nor did it place the onus of proof on the appellant with respect to honest belief in consent.

[2] Accordingly, the appeal is dismissed.