Jason Colling v. Her Majesty the Queen

(Alberta) (Criminal) (As of Right)


Criminal law - Trial, Defences - Criminal law - Trial - Defences - Whether intervention of trial judge during cross-examination of complainant rendered trial unfair - Whether interventions of trial judge caused appearance of trial fairness to be so lacking that result is miscarriage of justice - Whether dismissing defence of honest but mistaken belief in consent without hearing argument on issue resulted in unfair trial.


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The appellant was charged with sexually assaulting the complainant in his apartment. The only issue at trial was whether the sexual intercourse between the appellant and the complainant was consensual. The trial judge convicted the appellant of sexual assault. The appellant appealed his conviction, arguing that the trial judge erred by improperly interfering with the cross-examination of the complainant on a central matter, by creating a reasonable apprehension of bias and an unfair trial due to his interventions, and by preventing closing argument on the defence of mistaken belief in consent. The majority in the Court of Appeal dismissed the appeal. Berger J.A., dissenting, would have allowed the appeal, quashed the conviction and ordered a new trial. He was of the view that the trial judge’s interventions and his failure to allow closing arguments on the defence of mistaken belief in consent resulted in an unfair trial.