What is the defence in a sexual assault case where the accused would ask the court to conclude that he had a belief that the complainant consented?
British Columbia, Canada
The following excerpt is from R. v. Chahal, 2002 BCPC 98 (CanLII):
Further, the accused would ask the court to conclude that he had a belief that the complainant consented. However, the law requires that he take reasonable steps to ascertain that the complainant was consenting. (See Section 273.2 of the Criminal Code.) In other words, an enquiry must be undertaken. A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and provides no defence. (See R v. M.(M.L.) 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3).
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