R. v. Bulmer, [1987] 1 S.C.R. 782

Daniel Robert Laybourn, Edwin Hanson Bulmer and Richard Ray Illingworth Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. bulmer

File Nos.: 18221, 18222, 18251.

1986: February 7; 1987: June 4.

Present: Dickson C.J. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.

*Chouinard J. took no part in the judgment

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Charge to jury ‑‑ Rape and indecent assault ‑‑ Defence of mistake of fact ‑‑ Mistaken belief in consent ‑‑ Whether the defence should have been left with the jury ‑‑ Whether trial judge properly charged the jury.

At the trial of the accused on charges of rape, attempted rape and indecent assault, the evidence indicated that the complainant, a prostitute, agreed to provide her services to Laybourn for a certain price. She testified that they went to a hotel room and on entering she discovered the other two accused and objected to their presence. Illingworth sought to engage the favours of the complainant. She quoted her price and told him to come back in twenty minutes. Bulmer and Illingworth then left but returned shortly after. A discussion followed and Illingworth told the complainant that she would have to provide her services without payment. Frightened, she performed various sexual acts with all three. She denied giving consent and receiving payment. There was no physical violence other than the various sexual acts. Bulmer did not give evidence. Laybourn and Illingworth testified that price was discussed with the complainant after Bulmer and Illingworth returned to the room and that she finally agreed to have sex with them for twenty dollars each. No threats were made. The occupant of an adjoining room testified that he heard two accused leave and return. He also heard the woman complaining about their presence. Her voice seemed normal at first, but as time passed it took on a whining, wheedling tone. There was also discussion about price.

In defence, the appellants took the position that the complainant had consented to the acts. Counsel made the alternative submission that Laybourn had held an honest but mistaken belief in consent. The trial judge left the defence to the jury and told the jury that all three could rely upon the defence. The jury returned verdicts of guilty of rape against both Laybourn and Illingworth. Bulmer was acquitted of rape, but convicted of indecent assault. The majority of the Court of Appeal dismissed the appellants' appeals. The appeal here is to determine (1) whether on the facts of this case the defence of honest but mistaken belief should have been left with the jury, and (2) whether the charge to the jury was correct.

Held: The appeal should be allowed and a new trial ordered.

Per Dickson C.J. and McIntyre, Wilson, Le Dain and La Forest JJ.: When the defence of honest but mistaken belief in consent‑‑or for that matter any other defence‑‑is raised, two distinct steps are involved. The first step for the trial judge is to decide if the defence should be put to the jury. To leave the defence to the jury, there must be evidence before the court that gives an air of reality to the defence. In such cases, the second step requires the trial judge to explain the law to the jury, review the relevant evidence, and leave the jury with the issue of guilt or innocence. The jury must consider all the evidence, and they must be satisfied beyond a reasonable doubt in the case of a rape charge that there was no consent before they may convict. Where they find there was consent or honest belief in consent, or if they have a doubt on either issue, they must acquit. They should be told as well that the belief, if honestly held, need not be based on reasonable grounds. In cases arising since the enactment of s. 244(4) of the Criminal Code, they should also be directed that, when considering all the evidence relating to the question of the honesty of the accused's asserted belief in consent, they must consider the presence or absence of reasonable grounds for that belief.

There was evidence in this case to lend an air of reality to the defence of honest but mistaken belief in consent and the trial judge was not in error in deciding to put the defence to the jury. However, in dealing with the defence, the trial judge was clearly wrong in the supplementary charge to leave the jury with the impression that there must be reasonable grounds for the honest but mistaken belief before the defence could prevail.

Per Lamer J.: A mere assertion by counsel that the accused believed the victim was consenting would not meet the "air of reality" test. But the test should not be understood as going so far as enabling a trial judge to choose not to leave the defence of honest belief with the jury in cases where an accused has taken the stand and asserted under oath that he honestly believed in consent. An accused's oath to the effect that he honestly believed in consent is always some evidence, and its probative value in any given case belongs to the jury and not to the trial judge.

Cases Cited

By McIntyre J.

Referred to: Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609; Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220; Workman v. The Queen, 1963 CanLII 55 (SCC), [1963] S.C.R. 266; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918.

By Lamer J.

Referred to: Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 244(4) [en. 1980‑81‑82‑83, c. 125, s. 19], 246.4 [en. 1980‑81‑82‑83, c. 125, s. 19], 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18(1)].

Authors Cited

Blackstone, William. Commentaries on the Laws of England, vol. 4. Adapted by Robert Malcolm Kerr. Boston: Beacon Press, 1962.

Great Britain. Advisory Group on the Law of Rape. Report of the Advisory Group on the Law of Rape. London: H.M.S.O., 1975.

APPEAL from a judgment of the British Columbia Court of Appeal (1983), 1983 CanLII 249 (BC CA), 10 C.C.C. (3d) 256, dismissing appellants' appeals from two convictions for rape and one of indecent assault. Appeal allowed and new trial ordered.

Howard Rubin and Kenneth S. Westlake, for the appellants.

C. A. Ryan, for the respondent.

The judgment of Dickson C.J. and McIntyre, Wilson, Le Dain and La Forest JJ. was delivered by

1. McIntyre J.‑‑This case involves an appeal from two convictions of rape and one of indecent assault. There are two issues involved. The first, whether on the facts of this case the defence of mistake of fact should have been left with the jury, and the second, whether the charge to the jury on the question was correct.

2. The complainant was a prostitute. Late on the evening of July 13, 1980, the three appellants were together in the appellant Bulmer's hotel room. Laybourn left and picked up the complainant on the street. According to the complainant, they discussed sexual acts and prices and struck a bargain. She agreed to provide her services for eighty dollars. They returned to Bulmer's room and on entering discovered the other two. The complainant objected to their presence and they left. Before leaving, Illingworth sought to engage the favours of the complainant. She quoted her price and told him to come back in twenty minutes. When they left, Laybourn gave her eighty dollars. The other two returned to the room in a few minutes and Bulmer, learning that Laybourn had paid eighty dollars, said that the complainant was not worth that sum. He told her to return the money, which she did. She was frightened and Illingworth told her she would have to perform without payment. She then performed various sexual acts with the three appellants, asserting that she did so only out of fear. She denied giving consent. The police arrived at the room after some time and she left with them complaining of rape. She said there was no physical violence other than the various sexual acts and she received no payment.

3. Laybourn and Illingworth gave evidence. Bulmer did not. Laybourn confirmed the complainant's story of the departure and quick return of Illingworth and Bulmer. Then, according to his evidence, a discussion occurred. The complainant wanted sixty dollars from each man. They said they would pay her twenty dollars each. Laybourn told her she could take twenty dollars or leave. She seemed `jumpy' but didn't leave. She then asked if she could go when she had finished with them and he replied that she could go at once if she wished. She agreed to a price of twenty dollars from each man and various sexual acts, including intercourse, followed. No threats were made. Generally, Illingworth's evidence supported Laybourn's.

4. Evidence of what went on in the hotel room was also given by one Jones who occupied an adjoining room. From conversation overheard, he concluded that the woman was a prostitute. He heard Bulmer and Illingworth leave, go down the hall, and return. He heard the woman complain at the presence of the two men in the room and he heard conversation including a male voice saying, "you are in a tough business baby and you have got to learn to take it". At first, her voice seemed normal, but as time passed it took on a whining, wheedling tone. There was discussion about price, the woman saying she wanted sixty dollars each and a male voice saying they would pay her twenty dollars.

5. At trial, the appellants took the position that the complainant had consented to the acts. Counsel made the alternative submission that Laybourn had held an honest but mistaken belief in consent. The trial judge left the defence to the jury and told the jury that all three could rely upon the defence. The jury returned verdicts of guilty of rape against both Laybourn and Illingworth. Bulmer was acquitted of rape, but convicted of indecent assault. An appeal to the British Columbia Court of Appeal was dismissed, with Lambert J.A. dissenting: (1983), 1983 CanLII 249 (BC CA), 10 C.C.C. (3d) 256. This appeal is taken, under s. 618(1)(a) of the Criminal Code, on the basis of the dissent.

6. In the Court of Appeal (Taggart, Craig and Lambert JJ.A.), Taggart J.A. was of the view that the trial judge was right in leaving the defence of mistake of fact to the jury. He considered that the jury would not be misled by the charge; that the trial judge's instructions would not leave the jury with the impression that the appellants were obliged to show that their mistaken belief in consent was a reasonable one. Craig J.A. considered that the defence of mistake of fact should not have been put to the jury. In this case, he said, the issue was consent or no consent and there was no basis in the evidence for a defence of honest but mistaken belief in consent. He agreed with Taggart J.A., however, that taken as a whole, the trial judge's charge to the jury was adequate.

7. Lambert J.A. in his dissent was of the view that in the circumstances of this case the judge was required to put the defence of mistake of fact to the jury. He considered, however, that the defence was incorrectly put. The dissent is recorded in the formal order of the Court of Appeal in these terms:

8. THAT the learned trial judge erred in instructing the jury that the defence of honest but mistaken belief in consent required something more than a genuine belief in consent in the mind of the accused and in instructing the jury that there must be some objective evidence from which an inference could be drawn that the complainant might be consenting.

9. THAT the learned trial judge erred in leaving with the jury, the impression that there must be reasonable grounds to support the defence of honest but mistaken belief in consent.

10. The appellants raised three grounds of appeal in a revised factum which was filed on behalf of all three. The first issue raised alleges error on the part of the trial judge, upon the same basis as that mentioned in ground No. 1 of the dissent of Lambert J.A. The other two grounds raised points not dealt with below, which required the leave of this Court. They were expressed in the factum thus:

11. The Learned Trial Judge was without jurisdiction to conduct a joint trial against the Applicants as the Crown had proceeded against each of the Applicants severally.

12. The Learned Trial Judge erred in law having embarked on a trial of the Applicants, in directing the Jury that they acted jointly and further in not directing the Jury that the actions and words in fact evidence of each one could not be used against each of the others.

An application for leave to appeal in respect of both grounds was refused. The Court did not feel it necessary to call upon counsel for the Crown on that application. The appeal then turned on the "mistake of fact" issue. The appellants argued that the trial judge was in error in instructing the jury that the defence required objective evidence, apart from the testimony of the accused, to support the proposition that the complainant may have been consenting. The Crown contended that if the defence was open on the evidence, then the judge's charge was adequate and did not confuse the jury.

The Law Generally

9. The defence of mistake of fact is of long standing in law and was referred to as a settled principle by Blackstone in his Commentaries on the Laws of England in the latter part of the eighteenth century. At page 25 of vol. 4 of the Commentaries (Beacon Press, Boston, 1962), the following appears under the marginal note "Ignorance or mistake":

Fifthly; ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is not that conjunction between them, which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law. As if a man intending to kill a thief or housebreaker in his own house, `under circumstances which would justify that act,' by mistake kills one of his own family, this is no criminal action; but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so, this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law, as it was of the Roman.

The defence has been variously described and may be conveniently stated in these terms. If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non‑criminal, he is entitled to an acquittal. The law on this question as far as Canada is concerned has been stated authoritatively in Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120. Dickson J. (as he then was), writing on this point with the concurrence of the majority of the Court, held that the defence was available in Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved, and that the mistaken belief upon which the defence rests need not be reasonable, if honestly held. The subject has been further explored by my colleague, Wilson J., in her reasons for judgment in R. v. Robertson, [1987] 1 S.C.R. 918 (judgment delivered concurrently), with whose observations I agree. Our task then is to inquire whether in the circumstances of the case at bar the defence ought to have been put to the jury, and when it was put, was it done correctly?

10. It is well settled law that in his charge the trial judge must put to the jury all defences that may arise upon the evidence, whether they have been raised by counsel for the defence or not. In doing so, he is obliged to explain the law respecting the defence and to refer the jury to the evidence which may be relevant on that issue. Before putting the defence, however, the trial judge must decide whether in the facts before him the defence arises on the evidence. It is only when he decides this question in favour of the defence that he must leave it to the jury, for a trial judge is not bound to put every defence suggested by counsel in the absence of some evidentiary base. Indeed, he should not do so, for to put a wholly unsupported defence would only cause confusion.

11. This question was dealt with in some detail in Pappajohn. The majority of the Court were of the view that a defence should be put when there was evidence before the Court which would give an air of reality to the defence. While Dickson and Estey JJ. dissented from the majority on the question of whether such evidence existed, they expressed no disapproval of the test for putting the defence adopted by the majority. At page 127 in the Pappajohn case, the matter was discussed and such cases as Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609; Kelsey v. The Queen, [1953] l S.C.R. 220; and Workman v. The Queen, 1963 CanLII 55 (SCC), [1963] S.C.R. 266, were cited.

12. In discussing the application of the "air of reality" test in the Pappajohn case, I said, at p. 133:

To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.

These words appear, on occasion, to have been misunderstood, but I do not withdraw them. There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case. If that mere assertion were sufficient to require a trial judge to put the "mistake of fact" defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require the defence to be put. It must be remembered that at this stage of the proceedings the trial judge is not in any way concerned with the question of guilt or innocence. He is not concerned with the weight of evidence or with the credibility of evidence. The question he must answer is this. In all the circumstances of this case, is there any reality in the defence? To answer this question, he must consider all the evidence, all the circumstances. The statement of the accused alleging a mistaken belief will be a factor but will not by itself be decisive, and even in its total absence, other circumstances might dictate the putting of the defence. This view finds support in the passage from the Heilbron Report (Great Britain, Report of the Advisory Group on the Law of Rape (1975)) referred to by Dickson J., at p. 155 in Pappajohn, in these terms:

66. Morgan's case did not decide, as some critics seem to have thought, that an accused person was entitled to be acquitted, however ridiculous his story might be, nor did it decide that the reasonableness or unreasonableness of his belief was irrelevant. Furthermore it is a mistaken assumption that a man is entitled to be acquitted simply because he asserts this belief, without more. [Emphasis added.]

67. When the defence of mistake of fact‑‑or for that matter any other defence‑‑is raised, two distinct steps are involved. The first step for the trial judge is to decide if the defence should be put to the jury. It is on this question, as I have said, that the "air of reality" test is applied. It has nothing to do with the jury and is not a factor for its consideration. If it is decided to put the defence, the second step requires the trial judge to explain the law to the jury, review the relevant evidence, and leave the jury with the issue of guilt or innocence. The jury must consider all the evidence, and they must be satisfied beyond a reasonable doubt in the case of a rape charge that there was no consent before they may convict. Where they find there was consent or honest belief in consent, or if they have a doubt on either issue, they must acquit. They should be told as well that the belief, if honestly held, need not be based on reasonable grounds. Before going further, it should be observed that, since the decision of this Court in Pappajohn, the Criminal Code has been amended by the addition of s. 244(4), which provides:

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject‑matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

This section, in my view, does not change the law as applied in Pappajohn. It does not require that the mistaken belief be reasonable or reasonably held. It simply makes it clear that in determining the issue of the honesty of the asserted belief, the presence or absence of reasonable grounds for the belief are relevant factors for the jury's consideration. This approach was, I suggest, foreshadowed in Pappajohn by Dickson J., at pp. 155‑56, where he said:

Perpetuation of fictions does little for the jury system or the integrity of criminal justice. The ongoing debate in the courts and learned journals as to whether mistake must be reasonable is conceptually important in the orderly development of the criminal law, but in my view, practically unimportant because the accused's statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although "reasonable grounds" is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused's belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.

14. The jury should then be instructed, in accordance with s. 244(4) of the Code, that when considering all the evidence relating to the question of the honesty of the accused's asserted belief in consent they must consider the presence or absence of reasonable grounds for that belief.

Application to this Case

15. In the Court of Appeal, Taggart and Lambert JJ.A., while differing in the result, were both of the opinion that the evidence was sufficient to warrant the putting of the defence to the jury. I am in agreement with that view. From the evidence it is clear that when the complainant was picked up on the street by Laybourn, after some discussion she did consent to sexual intercourse with Laybourn. This consent would, of course, not extend to the others, and it may well be that she withdrew her consent on learning that the others wished to participate in the evening's activities. But there was other evidence, that of the witness Jones in the adjoining room which told of bargaining regarding price, and conversation that could be considered equivocal at times but which could raise questions on the issue of whether, and to what extent, she may have consented, or to what extent the appellants may have understood her to be consenting. I would agree, as I have said, with Taggart and Lambert JJ.A. that there was then sufficient evidence to lend an air of reality to the defence of mistake of fact and the trial judge was not in error in deciding to put the defence to the jury.

16. The two points on which Lambert J.A. dissented in the Court of Appeal have been set out above. In summary, he was of the view that the trial judge was in error in telling the jury that more than a genuine belief in consent in the mind of the accused was required to support the defence and that there must be some objective evidence supporting the belief that the complainant might be consenting and, as well, that there was error on the part of the trial judge in leaving the jury with the impression that there must be reasonable grounds for the honest but mistaken belief before the defence could prevail. Lambert J.A. based his dissent not upon the main charge but upon a supplementary charge requested by the jury after they had commenced their deliberations. On their return to the courtroom, after some evidence had been read back at the jury's request, the following occurred:

THE COURT: Thank you. Now, that's the evidence of Mr. Jones that you asked for.

Mr. Foreman, you've given me another question which is not quite as simple as the last one and you've asked for further address to the jury on the matter of reasonable belief. I'm hard pressed to do that. Is there anything specific that you're concerned about?

MR. FOREMAN: My lord, I believe when you were addressing us this morning on the definition of reasonable belief that you were going quite quickly.

THE COURT: Okay, I'll go over it again. You realize, of course, when I instructed you on honest belief, this is the third position as opposed to‑‑opposed to the consent being asserted by the Accused, denied by the complainant, this is something over and above that scenario, and that's where it is. If you find there is some evidence that might assist you in concluding that, even though the girl wasn't consenting, you accepted that, if there is some basis upon which the Accused thought she was consenting, that would be a defence, but that has to be based on something more than something in his mind, it has to be based on something else, some evidence from which an inference can be drawn that she might be consenting.

I will read again‑‑I dealt with the ingredients of the crime of rape as being complete upon (a) an act of sexual intercourse, (b) without consent. An affirmative finding as to each of these elements in this case does not end the matter, as a defence is not evidence that the Accused believed Laybourn‑‑believed Ms. Schmidt to be consenting to the sexual intercourse.

The commission of a crime voluntarily directed by a willing mind, this we call mens rea. This consists of some positive state of mind such as an intention or the knowledge of the wrongfulness of the act or reckless disregard of the consequences which must be proved by the prosecution. The mental element may be established by inference on the nature of the act committed or by additional evidence. You will be concerned to consider the reasonableness of any grounds found or asserted to be available to support the Accused's belief. Reasonable grounds is not a pre‑condition to the availability of honest belief and consent, those grounds determine the weight to be given to the evidence. The reasonableness or otherwise of the Accused's belief is only evidence for or against the view that the belief was actually held and the intent was therefore lacking. So if you conclude that the Accused or any of them honestly believed Ms. Schmidt was consenting to the acts of intercourse and that then that necessary mental element would be lacking and you would acquit.

Now, this is‑‑that is only, of course, when there is some reasonable grounds to support the belief because it can hardly be an honest belief if it isn't based on anything to support the belief and it's not sufficient to say I believe she was opposing the rape, it has to be something else, something you can glean from the evidence to support that position. [Emphasis added.]

17. The words of the foreman of the jury, quoted above, revealed that the jury was concerned on the question of reasonable belief. It was therefore important that the trial judge direct the jury fully on the question so that any misapprehension on their part could be dispelled. Lambert J.A. noted this point and, referring to the two emphasized passages in the part of the charge quoted above, he said, at pp. 276‑77:

The first passage is wrong. The defence of honest belief does not have to be based on something more than something in his mind. The trial judge should not put the "air of reality" question to the jury. That is for him. Once he has decided to put the defence to the jury, the "air of reality" question is over. All that is then required is for the jury to decide on the evidence whether the accused honestly believed in consent, in his own mind. There does not have to be "evidence from which an inference could be drawn that she might be consenting." That diverts the jury from the question that is truly before them, namely: did the accused believe that the complainant consented?

The second passage is also wrong. There do not have to be reasonable grounds to support the belief. It can be an honest belief even if there are no reasonable grounds. I do not think that the previous paragraph can modify the impression that this last paragraph must have had on the jury. I doubt if what the trial judge actually said was "...it's not sufficient to say I believe she was opposing the rape..."

18. As I have indicated, I agree with Lambert J.A. that the "air of reality" test is for the judge and does not concern the jury. The issue facing the jury with respect to the defence which had been put to them related to the honesty of the appellants' asserted belief in consent. It was said to be error on the part of the trial judge to say that the belief entertained by the appellants had to be based on something from which the inference could be drawn that there might be a consent. In this, the trial judge may well have been confusing the "air of reality" test, which is for him alone, with the "reasonable doubt" test, which is for the jury, and his words may well have diverted the jury from their true task which was to answer the question: Did the accused believe that the complainant consented? Regardless of its effect on them, however, the second passage attacked by Lambert J.A. is clearly wrong and, as he said, amounts to serious misdirection. I am unable to say that this specific direction that there must be some reasonable ground to support the asserted belief, being the last words the jury heard on the subject, would not override the earlier correct direction. I would, accordingly, allow the appeal and direct a new trial.

The following are the reasons delivered by

19. Lamer J.‑‑I have read the reasons for judgment of my colleague Justice McIntyre and, for the reasons he sets out, I agree that this appeal should succeed. I wish to add, however, the following qualifications to certain statements made in his reasons.

20. I agree with McIntyre J. that "a trial judge is not bound to put every defence suggested by counsel in the absence of some evidentiary base" (p. 789) and that "to put a wholly unsupported defence would only cause confusion" (p. 790) amongst the jurors. In addition, I do not take issue with the "air of reality" test referred to in Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, by McIntyre J.

21. With respect, however, I have difficulties with his application of the "air of reality" test. In Pappajohn, he said, at p. 133:

To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.

In his reasons in this case, he says (at p. 790):

These words [air of reality] appear, on occasion, to have been misunderstood, but I do not withdraw them. There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case. If that mere assertion were sufficient to require a trial judge to put the `mistake of fact' defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require the defence to be put.

22. If this means that the trial judge is not required to put the defence to the jury merely because the accused's lawyer has referred to the defence in argument, then I agree. There must be some evidence supporting the defence before it is to be put to the jury. However, I must respectfully take issue with the "air of reality" norm if it is to be understood as going so far as enabling the trial judge to choose not to leave the defence of honest belief with the jury even in a case where the accused has taken the stand and asserted under oath that he or she honestly believed in consent. An accused's oath to the effect that he or she honestly believed in consent is always some evidence, and its probative value in any given case belongs to the jury and not to the trial judge. It is, of course, open to the trial judge to comment on the probative value of the evidence, but the jury remains the master of the facts. The trial judge must not usurp the role of the jury by removing the evidence from the jury's consideration on the ground that, in his or her view, the defence lacks an "air of reality".

23. Writing for the majority of this Court in Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, in the context of directed verdicts, McIntyre J. said, at p. 844:

When, however, he [Lord Widgery C.J. in R. v. Turnbull, [1976] 3 All E.R. 549 (C.A.)] introduces the suggestion that the trial judge should consider the quality of the evidence and, where he finds it wanting, take the case from the jury, he enters more controversial ground and authorizes the trial judge to encroach upon the jury's territory. Such a step blurs or even obliterates the clear line separating the functions of judge and jury. Questions of credibility and the weight that should be given to evidence are peculiarly the province of the jury. The term quality', as applied by Lord Widgery C.J., is really nothing more than a synonym for weight'. To consider it, the trial judge exceeds his function.

The combined effect of McIntyre J.'s test in this case for withdrawing a defence from the jury and the majority's test in Mezzo for withdrawing the case would lead to incongruous results. Where the only evidence on the questions of consent and belief in consent is the testimony of the complainant and that of the accused, the complainant's allegation of no consent must go to the jury (Mezzo) but the accused's defence of honest belief in consent may be withdrawn from the jury unless it is supported by other evidence or circumstances (this case). The old common law rule in sexual assault cases that the trial judge must instruct the jury that it is unsafe to convict in the absence of corroboration of the complainant's testimony (which was abolished by s. 246.4 of the Criminal Code) would in effect be replaced by a rule requiring corroboration of the accused's testimony. Such a requirement will often work an injustice to the accused. Clearly the best, and quite often the only, evidence of the accused's subjective belief will be his or her testimony, and there is no basis in law or in principle for requiring corroboration. In addition, this Court decided in Pappajohn that the accused's belief must be honest but need not be reasonable. As a result, there clearly cannot be a requirement that the accused's belief be supported by the circumstances before it can be submitted to the jury. As Dickson J., as he then was, wrote, at p. 156:

It will be a rare day when a jury is satisfied as to the existence of an unreasonable belief. If the claim of mistake does not raise a reasonable doubt as to guilt, and all other elements of the crime have been proved, then the trier of fact will not give effect to the defence. But, if there is any evidence that there was such an honest belief, regardless of whether it is reasonable, the jury must be entrusted with the task of assessing the credibility of the plea.

24. I should, in passing, add that in my view the issue of mistaken belief in consent should also be submitted to the jury in all cases where the accused testifies at trial that the complainant consented. The accused's testimony that the complainant consented must be taken to mean that he believed that the complainant consented. As a result, if the jury believes the complainant and concludes that the complainant did not consent, that does not end the matter, for the accused's assertion cannot be disposed of completely unless consideration is then given to his or her being honestly mistaken in believing that the complainant consented.

25. Finally, I wish to add that I do not believe that this view of the "air of reality" test will open the floodgates to claims of honest mistake as to consent in sexual assault cases. An accused who wishes to raise the defence in the absence of any other evidence supporting an honest mistake will be required to take the stand and will run the risks of cross‑examination. In addition, I do not think that the jury will be fooled by false claims of the defence. Juries are constantly assessing and then discarding defences because they lack an air of reality and do not raise a reasonable doubt. Sexual offence cases are no different.

26. Subject to these reservations, I agree with McIntyre J.'s reasons and would accordingly allow the appeal and direct a new trial.

Appeal allowed and new trial ordered.

Solicitor for the appellant Laybourn: Howard Rubin, Vancouver.

Solicitor for the appellants Bulmer and Illingworth: Kenneth S. Westlake, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.