The accused was convicted of sexual assault and kidnapping after carrying the complainant from a trailer without her clothes, transporting her 40 miles to a remote cabin, tying her to a bed and having sexual intercourse with her.
On appeal to the Supreme Court of Canada, the majority (5-4) held that the trial judge erred in refusing to permit cross-examination on the complainant's medical records for the purpose of determining whether there was evidence supporting a defence of honest but mistaken belief in consent or an allegation of fabrication.
All nine justices agreed that s. 265(4) of the Criminal Code, which imposes the air of reality test for the defence of mistaken belief in consent, does not violate ss. 11(d) or 11(f) of the Charter.
The Court extensively discussed the principles governing cross-examination of sexual assault complainants on medical records, the privacy interests at stake, and the proper scope of the air of reality threshold applicable to all criminal defences.
