Law360 Canada (October 20, 2022, 11:36 AM EDT) -- Appeal by MM from the sentence imposed following his conviction for sexual assault of JD. MM asked JD’s mother if he could spend the night with her family as he was having issues at home. JD’s mother agreed. JD testified she and MM were really close friends. The judge accepted her evidence that she woke up to MM having sex with her. The judge viewed MM's narrative of events as lacking credibility. He rejected his evidence that JD consented to the sexual intercourse. He concluded MM took no reasonable steps to confirm consent by JD and relied on silence and passivity or ambiguous conduct by JD, and as a result there was no air of reality or proper legal foundation to his claim of an honest but mistaken belief. The pre-sentence report concluded by stating MM appeared to be a suitable candidate for community supervision, if he was referred to appropriate services and followed through with same. At sentencing, the Crown acknowledged probation was an available sentence but argued in favour of custody as the appropriate disposition. MM was sentenced to 3 months custody followed by 1 1/2 months Open Custody/Supervision Order and Probation for 19 months....