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CRIMINAL CODE OFFENCES - Sexual assault - Consent - Honest but mistaken belief

Wednesday, March 25, 2020 @ 9:21 AM  


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Appeal by Foster from his conviction for sexual assault. During an evening watching movies together, the complainant and the appellant had sexual intercourse. They had not discussed having sex and no words were spoken during the sexual activity. The complainant testified that she did not consent to the sexual intercourse, which included choking by the appellant. The appellant testified that the sexual activity was consensual and denied choking the complainant. The trial judge found the complainant did not consent to the sexual activity. He rejected the appellant’s defence of honest but mistaken belief in consent on the basis the appellant did not take reasonable steps to ascertain whether the complainant was consenting.

HELD: Appeal allowed; new trial ordered. The trial judge conflated the essential element of the offence of sexual assault, the actus reus/non-consent component, and the last essential element, the mens rea defence of honest but mistaken belief in communicated consent. The trial judge failed to determine, first and separately, whether the Crown had proven the essential element of non-consent beyond a reasonable doubt, apart from the issue of mens rea, before proceeding to analyze the defence of honest but mistaken belief in communicated consent. The trial judge failed to consider and assess aspects of the complainant’s evidence that were relevant to the question of her credibility and her state of mind.

R. v. Foster, [2020] N.B.J. No. 30, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and L.A. LaVigne JJ.A., February 6, 2020. Digest No. TLD-March232020006