Thursday, May 9, 2013

Honest but mistaken belief in consent not available where complainant incapable and accused aware of that

R. v. Colbourne, 2013 ONCA 308 holds:

[14]       On the basis that the case was argued at trial, the sole issue was whether the complainant consented to have sex with the appellant.  Section 273.1(2)(b) provides that no consent is obtained where the complainant is incapable of consenting to the activity.

[15]       Before us, the appellant submits that the trial judge was also obliged to consider whether the appellant had an honest belief in the appellant's consent. Inasmuch as we see no error in the trial judge's finding that the complainant was incapable of consenting to sexual activity and his finding that the appellant knew this, the defence has no air of reality.

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