R. v. Whitley, [1994] 3 S.C.R. 830

Percival Whitley Appellant

v.

Her Majesty The Queen Respondent

and between

Timothy Erin Mowers Appellant

v.

Her Majesty The Queen Respondent

and

Women's Legal Education and Action Fund Intervener

Indexed as: R. v. Whitley

File Nos: 23890, 23891.

1994: December 1.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Sexual assault ‑‑ Defences ‑‑ Consent ‑‑ Defence of honest but mistaken belief in consent.

APPEALS from a judgment of the Ontario Court of Appeal (1993), 21 W.C.B. (2d) 595, affirming the appellants' convictions by Locke J. (1992), 20 W.C.B. (2d) 374, on charges of sexual assault. Appeals dismissed.

Richard Litkowski, for the appellant Whitley.

Keith E. Wright, for the appellant Mowers.

Karen Manarin and Hilary Whitmey, for the respondent.

Chantal Tie and Laurie Joe, for the intervener.

The judgment of the Court was delivered orally by

Lamer C.J. ‑‑ Assuming without deciding that on the evidence adduced in this case, the defence of honest but mistaken belief in consent should have been put to the jury, we are all of the view that, having regard to the manner in which the issue of knowledge of absence of consent was put to the jury, the jury's conviction negatived that defence. Therefore the failure, if any, to specifically frame the matter as a defence, did not occasion a substantial miscarriage of justice. With respect to the argument that the trial judge misdirected the jury on the issue of consent, we agree with the Ontario Court of Appeal.

Both appeals are accordingly dismissed.

Judgment accordingly.

Solicitor for the appellant Whitley: Richard Litkowski, Toronto.

Solicitor for the appellant Mowers: Keith E. Wright, Toronto.

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

Solicitors for the intervener: Diane Oleskiw, Toronto; Laurie Joe, Ottawa.