Summary

36532

Johnathan Peter Spicer v. Her Majesty the Queen

(Alberta) (Criminal) (As of Right)

(Publication ban in case)

Keywords

Criminal law.

Summary

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Criminal law - Charge to jury - Defences - Mistaken belief in consent - Appellant acquitted of sexual assault - Court of Appeal ordering a new trial because trial judge failed to instruct the jury that a mistaken belief in consent depends on the accused having taken reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting - Whether result would have been the same had the jury been properly instructed.

Mr. Spicer was acquitted by a jury of a charge of sexual assault. The Crown appealed the acquittal, arguing that the trial judge erred in law in placing the defence of mistaken belief in consent before the jury because there was no air of reality to the argument, and that the trial judge failed to instruct the jury that under s. 273.2 of the Criminal Code, a mistaken belief in consent depends on the accused having taken reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. The majority of the Court of Appeal agreed with the Crown’s second ground and ordered a new trial. It was of the view that the verdict of the jury would not necessarily have been the same if they had been properly instructed. Wakeling J.A., dissenting, agreed that the trial judge erred in his charge to the jury but believed that the result would inevitably have been the same had the jury been properly instructed. He would have dismissed the appeal.