Nov 27, 2014



FACTS:

The complainant and Cornejo were co-workers. Cornejo entered the victim's house, thinking there was consent from a phone call.The victim was drunk from an office party, Cornejo walked in, removed her clothing, and attempted to have intercourse with her. The complainant claims she was explicit in saying “no” while Cornejo claims she helped him get her clothes off by lifting her pelvis.


ISSUE:

Did the trial judge err in leaving the defense of honest but mistaken belief in consent for the jury's consideration when there was no air of reality to that defense?


HELD:

Yes, the trial judge erred. Crown’s appeal allowed.





NOTES:


  • Honest but mistaken belief in consent must meet an air of reality threshold before it can go to the jury as a defense.

  • Ewanchuk demonstrates that silence; facility; or ambiguous conduct constitutes consent is NOT a defense.

  • Abella J.A.: “In these circumstances, the movement of the complainant's pelvis was simply an insufficient basis to allow the defense [of mistaken belief] to go the jury.”

  • Cornejo failed to take reasonable steps to ascertain the consent of the complainant in order to invoke this type of defense (as per s. 273.2(b)).