Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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Criminal Law – Offences – Elements of Offence – Sexual assault – Consent – Defences – Honest but mistaken belief in consent – Trial – Reasons for judgment – Whether a complainant’s unilateral mistake as to the identity of his or her sexual partner, in the absence of fraud by the accused, is sufficient to vitiate consent to the sexual activity that occurs between them – Whether a complainant’s unilateral mistake of fact regarding an issue upon which consent hinged is sufficient to establish the absence of voluntary agreement to the sexual activity in question – Whether trial judge misapplied the defence of mistaken belief in consent and imposed a standard higher than the taking of reasonable steps to ascertain consent – Whether trial judge’s reasons were sufficient to allow applicant to know the basis for the conviction and to permit meaningful appellate review.

The complainant attended a party at her boyfriend’s apartment, consumed alcohol, and went to sleep in her boyfriend’s bed. Several hours later, her boyfriend’s identical twin brother got into the same bed. Their evidence as to what happened next differs. The complainant's evidence is that a person that she presumed was her boyfriend initiated sexual activity which she rejected, using her boyfriend’s name throughout. He forcibly commenced vaginal intercourse. She left the bed, turned on a light and saw that he was the applicant and not her boyfriend. She reacted with anger and disbelief. The applicant's evidence was that after he got into the bed, the complainant initiated heavy petting that aroused him and which led to further sexual activity. At no point did she call his brother’s name. At one point they lay facing one another and there was enough light in the bedroom that he could clearly see the details of her face. His brother had an injured eye and the complainant could tell them apart. At one point he asked “Are you sure?” and, in response, she initiated intecourse. When he uttered something else, she jumped out of bed, turned on a light and reacted with anger and disbelief.