Case information

None.

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.

Criminal law - Sexual assault - Defence of mistaken belief in consent - Air of reality - Whether the Court of Appeal erred by substituting the findings of fact and inferences of the trial judge with its own findings of fact - Whether the complainant’s nonverbal communication established an air of reality to the defence of honest but mistaken belief in consent - Whether it is incumbent on an accused to take reasonable steps to ascertain that a complainant is consenting if consent may be inferred from the objective circumstances - Whether the Court of Appeal may rely on the testimony of an accused to negate the defence of honest but mistaken belief in consent, notwithstanding that the accused’s evidence was not believed by the trial judge - Whether the Court of Appeal reversed the burden of proof respecting the defence of honest but mistaken belief in consent.

Mr. Flaviano was acquitted of one count of sexual assault. He was the owner of a rental unit occupied by the teenage complainant, her mother and step-father. It is alleged that Mr. Flaviano assaulted the complainant while at the unit fixing the dishwasher. The complainant and Mr. Flaviano testified at trial, but their testimony differed dramatically. Mr. Flaviano’s position was that the complainant had consented, and his fallback position was that if the complainant had not consented, then he was mistaken about that. The trial judge acquitted him on that basis. On appeal, the Crown argued that there was no air of reality to the defence of mistaken belief in consent. The Court of Appeal agreed and entered a conviction.