Pappajohn

//R. v. Pappajohn //    McIntyre J. (Pigeon, Beetz, and Chouinard JJ. concurring):   · The defence of mistaken but honest belief in consent rests on the proposition that the mistaken belief deprives the accused of the requisite //mens rea// · While it is the trial judge’s duty to instruct the jury on any defences open to the accused, before any obligation arises there must be in the evidence some basis upon which the defence can rest, and it is only where such an evidentiary basis is present that a trial judge must put a defence  · The standard a judge must apply in determining whether to put a defence is set out in //Kelsey v. R.//: “The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.”  · In this case, to convey such a sense of reality, there must be evidence that supports the existence of a mistaken but honest belief that the complainant was consenting to the intercourse, however, this honest belief need not be reasonable  · McIntyre J. concludes “To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.”  · “In other words, there must be evidence explaining, however preposterous the explanation might be, a basis for the mistaken belief. In the case at bar, there is no such evidence.”  
 * Facts: **<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> The accused appeals his rape conviction. The complainant was the accused’s real estate agent and alleged the accused had intercourse with her five times without her consent. The accused argued that the complainant consented to the intercourse. The alleged sexual assault took place in the home of the accused, from which the complainant escaped naked with her arms tied behind her back and wearing only a bowtie around her neck.
 * <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">Reasoning: **
 * <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">Held: **<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> The trial judge did not err in failing to put the defence of mistake of fact to the jury. There is insufficient evidence to support putting the defence of mistake of fact to the jury.
 * <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">Ratio: **<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> The defence of mistaken but honest belief in consent does not require that the honest belief be reasonably held.