CRIMINAL CODE OFFENCES – Sexual assault - Consent - Honest but mistaken belief

Law360 Canada (November 24, 2022, 6:53 AM EST) -- Appeal by the Crown from the acquittal of CL on a sexual assault charge of a 15-year-old female complainant. The Crown argued that the trial judge made errors of law in concluding it failed to establish absence of complainant’s consent. The complainant and CL were friends. They were out for a drive together and went back to the complainant’s home. The complainant said CL was invited in to see the home interior. The complainant testified CL pulled her onto the bed and proposed sexual intercourse. She replied “no” and told CL to leave but he proceeded to slide his hand inside her clothing and engaged in vaginal intercourse. CL, 17 years old at the time, admitted he had vaginal intercourse with the complainant but maintained she consented. Trial judge found the Crown failed to establish that the complainant was not consenting. The judge found the complainant’s version was not credible, reasoning that if she had spoken up, CL would have stopped. The judge did not believe the complainant’s testimony that CL asked her to search for a condom in her brother’s bedroom. Among the reasons provided was, if it were true, then the complainant could have left the house and prevented the alleged rape....
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