Defence of honest but mistaken belief should not go to jury in absence of evidence that accused took reasonable steps to ascertain consent

Supreme court | Criminal Law | Defences | Consent

Accused was charged with having committed sexual assault. Chief Military Judge submitted to court martial panel defence of honest belief in consent. Not guilty verdict was rendered and Crown appealed. On appeal, majority decided that Chief Military Judge could not submit defence to panel. Majority was of view that statutory limitations set out in section 273.2 of Criminal Code should be considered first. Appeal was allowed and new trial was ordered. Accused appealed before Supreme Court of Canada. Appeal dismissed. There was no evidence from which a trier of fact could find that the accused had taken reasonable steps to ascertain that the complainant was consenting. Therefore, the defence of honest but mistaken belief should not have been put to the panel.

R. c. Gagnon (2018), 2018 CarswellNat 5739, 2018 CarswellNat 5740, 2018 SCC 41, 2018 CSC 41, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellNat 233, 2018 CarswellNat 234, 2018 CACM 1, 2018 CMAC 1, B. Richard Bell C.J., Elizabeth A. Bennett J.A., and Johanne Trudel J.A. (Can. Ct. Martial App. Ct.).

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Working from home not so popular with Law Times readers

Recent cases highlight issues with arbitration in Ontario

AG appoints Marie Hubbard as interim associate chairwoman of LPAT

Juristes Power Law welcomes new lawyer

International group of firms help secure new home for Peppa Pig

Appeal shows power of physical exhibits in IP, says lawyer

Most Read Articles

Law Society of Ontario names new equity and Indigenous affairs committee members

Law professor Ryan Alford granted standing in national security law challenge

Amid enactment of sweeping law enforcement Bill C-75, LSO seeks status quo for students, paralegals

LSO must stand up for racialized licensees, says prospective returning bencher