Appellant convicted of sexual assault after trial appealed, arguing that the trial judge misapplied the test in W(D) and that defence of mistaken belief in consent should have been available.
Held: Appeal dismissed.
Court found the trial judge did not misapply W(D) and the conviction should stand. The majority reconsidered Ryon [2019 ABCA 36] on the second prong of W(D), reverting to the wording proposed in Gray [2012 ABCA 51] that “if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (Again subject to defences with additional elements such as an objective component)”. Following Barton [2019 SCC 33], decided after the Appellant’s trial, the defence of mistaken belief in communicated consent was not made out on his own evidence. Slatter, JA concurred in the result.
R. McIntyre / T. Roulston – Defence Counsel