C called A. A was asleep told him to get off phone waiting for bf to call. C called 2 more times and asked if he could come over. A said mmhmm. Door was unlock, C walked in. C started kissing her, she laid still. A lifted her pelvis when he went to take clothes off. A kicked him out when woke up
Is their an air of reality to defence of mistaken belief in consent?
s.273.2 – it is not a defence to a charge of sexual assault that the accused believed the complainant consented to the activity where; the accused’s belief arose from the accused’s self intoxication or recklessness or willful blindness or the accused did not take reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Determination of reasonable steps is a matter of law to be determined by the trier of law.
The trier of law (judge) determines whether reasonable steps were taken and if not then s.273.2(b) statutorily bars the defence to be left to jury (thus cannot be given to the jury or trier of fact to determine if there is an air of reality) - Up to trial judge to apply s.273.2(b).
Air of reality test – trial judge has a duty to keep from the jury any defences lacking an evidentiary foundation or an air of reality
**Test: Whether there is evidence on the record upon which a properly instructed jury acting reasonable could acquit
Defence of honest but mistaken belief in consent involves:
**That the accused honestly believed the complainant consented
**That the accused have been mistaken in this belief
The circumstances required C to take reasonable steps to ascertain consent, and he took no steps – so s.273.3(b) statutorily bars the defence
1st do reasonable steps THEN air of reality test