Warrant Officer J.G.A. Gagnon v. Her Majesty the Queen

(Federal Court) (Criminal) (As of Right)


Criminal law - Defences - Criminal law - Sexual assault - Defences - Honest but mistaken belief in consent - Accused acquitted of sexual assault - Whether defence of honest but mistaken belief in complainant’s consent could be put to trier of fact - Criminal Code, R.S.C. 1985, c. C 46, s. 273.2.


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The appellant was acquitted by the General Court Martial on a charge of sexual assault. The Crown appealed the acquittal. The majority of the Court Martial Appeal Court found that the trial judge, the Chief Military Judge, had made errors of law justifying a new trial and allowed the appeal. In its view, the Chief Military Judge could not put the defence of honest but mistaken belief in the complainant’s consent to the trier of fact, the court martial panel, without first considering, as a matter of law, the statutory limitations on the use of that defence set out in s. 273.2 of the Criminal Code. Bell C.J., dissenting, would have dismissed the appeal. In his view, the defence of honest but mistaken belief in consent had an air of reality in this case and the Chief Military Judge had correctly put it to the panel.