The Crown appealed an order granting a new trial after a sexual assault conviction.
The court held that an instruction on honest but mistaken belief in consent is not mandatory in every sexual assault case; it is only required where there is sufficient evidence giving that issue an air of reality under s. 244(4) of the Criminal Code.
On the record, the accused's theory of consent or mistaken belief lacked an evidentiary foundation.
The court also held that evidence from the complainant's roommate about a prior sexual proposition was admissible because its probative value outweighed its minimal prejudicial effect, and in any event any error would have been cured by the proviso.
