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CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault - Consent - Honest but mistaken belief

Tuesday, February 21, 2017 @ 11:48 AM  

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Appeal by the accused, Beck-Wentzell, from a conviction for sexual assault. The victim was the accused's common-law spouse. The victim testified that the accused arrived home from work while she was asleep with their child. She testified that the accused entered the bedroom and began removing her sleepwear, indicating a desire for sexual intercourse. The victim testified that she told the accused she was not interested. She stated that the accused performed sexual intercourse while she repeated "no" throughout their interaction. The accused testified and denied sexually assaulting the complainant. The trial judge rejected the accused's evidence and entered a conviction. On appeal, the accused claimed the trial judge misconstrued his evidence as a denial intercourse occurred. Instead, the accused maintained that his evidence was he ceased intercourse as soon as the victim voiced her non-consent. The accused relied on text messages with the victim in support of his position. The accused submitted the trial judge failed to consider his defence of honest but mistaken belief in consent.

HELD: Appeal dismissed. The trial judge did not misapprehend the evidence. The accused's direct evidence made no reference to sexual intercourse. The trial judge's analysis attempted to assess vague and contradictory testimony as to the physical activity occurring between the accused and the victim. The central issue was not the nature of the sexual activity, but rather whether it continued after the victim expressed her unwillingness to participate. The victim testified the accused persisted, and the accused testified he stopped immediately. The trial judge's reconciliation of the competing evidence resulted in the conclusion the text messages made no sense if one accepted the accused's version of events. No clear error was established. The verdict was not unreasonable, as there was ample evidence non-consensual sexual activity occurred. In addition, there was no merit to the accused's defence of honest but mistaken belief in consent, as the accused's testimony did not reference any belief the victim consented, or explain how the situation was sufficiently ambiguous to support an honest but mistaken belief.

R. v. Beck-Wentzell, [2017] N.S.J. No. 29, Nova Scotia Court of Appeal, J.E. Fichaud, P. Bryson and C.A. Bourgeois JJ.A., January 27, 2017. Digest No. 3639-002