At party. Both people had gone to bed separately. Complainant said she woke up and felt someone having sex with her, she thought it was her boyfriend, opened her eyes and boyfriend was beside her. Accused says he doesn’t remember how he got on to her but that they kissed and had sex for 5 min, not 10 sec like she says
Is there evidence to support the defence of honest but mistaken belief in consent?
Defence of honest but mistaken belief in consent can’t be used if:
**Mere assertion by the accused is not sufficient;
**Must be evidence capable of explaining how accused could honestly have mistaken the complainants lack of consent as consent;
**Totality of the evidence must be considered, and;
**No air of reality if one of the bars mentioned in s.273.2 is present (accused’s belief arose from self-intoxication or recklessness or willful blindness, or if the accused did not take reasonable steps to ascertain consent in the circumstances)
If there is some evidence that would give an air of reality to the defence then the judge has to give that defence to the jury
R v Park
**For their to be an air of reality to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence
R v Davis
**Where stories are completely opposed (incompatible), then you cannot combine the facts to make a 3rd scenario – you either believe one of the other
**Must be evidence capable of explaining how the accused could honestly have mistaken the complainants lack of consent as consent
When the accused is unable to recall what happened, it is the equivalent of the accused not testifying.
**Thus no air of reality to the defence with respect to the time before the accused had any recollection.
**He did not take reasonable steps to ascertain her consent as he doesn’t remember the events that lead to the sex
Trial judge should not have left the defence with the jury
Given the inconsistencies of these stories there can be no air of reality to the defence.
Subjective-objective standard – use the reasonable person knowing what the accused knew