Sansregret

//R. v. Sansregret //   The accused appeals the decision of the Court of Appeal convicting him of rape, arguing that the defence of mistaken but honest belief in consent should apply given that it is the honesty of such belief that is determinative in considering the defence, not its reasonableness.   The charge in this case is under s.143(//b//)(i) of the Criminal Code which has since been repealed but was in force when this case arose.    The reasons of the court were delivered by //McIntyre J.://  · The mens rea for rape must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not. An honest belief on the part of the accused, even though unreasonably held, that the woman was consenting to intercourse freely, and voluntarily and not because of threats, would negate the mens rea and entitle the accused to an acquittal.  · The trial judge erred in her application of mistaken but honest belief in consent because the accused in this case was wilfully blind as to the nature of the complainant’s consent, which was induced by threats. He chose to see only what he wanted to.  · Wilful blindness must be distinguished from recklessness, because a finding of recklessness in this case would allow for the defence of mistake of fact because it would not disprove that the accused’s mistaken belief in consent was honestly held. However, where wilful blindness is shown, the law presumes knowledge on the part of the accused and therefore, would not allow for the application of the defence of mistake of fact.  · Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.  · “The appellant was aware of the likelihood of the complainant's reaction to his threats. To proceed with intercourse in such circumstances constitutes, in my view, self-deception to the point of wilful blindness.” <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">
 * <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">Facts: **<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">The accused was the ex-partner of the complainant. A few days after the complainant broke up with him, the accused broke into the complainant’s home and in order to calm him down, the complainant had intercourse with him and pretended there was hope of reconciliation. The complainant reported this incident to the police but it did not lead to any proceedings. A few weeks later, the accused again broke into the complainant’s home, he was armed with a butcher’s knife and threatened to hurt her or kill her. She managed to calm him down by having intercourse with him and saying there was hope of reconciliation. The complainant says at no point did she consent to the intercourse, she only cooperated out of fear that he would harm or kill her.
 * <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 appeal should be dismissed.
 * <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";">Ratio: **<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> Where wilful blindness is shown, mistaken but honest belief in consent is not a defence to sexual assault.