What is the test for acquittal in a sexual assault case where the accused believed the victim was under 14?

British Columbia, Canada


The following excerpt is from R. v. Ferguson, 1987 CanLII 2643 (BC CA):

The first assumption is that only a reasonable and honest belief would justify acquittal. I confess I have difficulty seeing what “honest” adds to “belief. But if it is taken to connote some sort of diligence, then I think it far from clear that that would have to be shown to support acquittal. Nor do I see any basis for suggesting that his belief would have to be reasonable on some objective basis. The reasonableness of the belief might be a factor for the jury to consider in determining whether the accused actually had such a belief (Pappajohn v. R., 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120 at 155-56, [1980] 4 W.W.R. 387, 14 C.R. (3d) 243, 19 C.R. (3d) 97, 52 C.C.C. (2d) 481, 111 D.L.R. (3d) 1 [B.C.]), but in the final analysis, if the jury entertained a reasonable doubt that the accused in fact believed the victim to be under 14, it would be bound to acquit. As stated in Colvin, Principles of Criminal Law (1986), at p. 83: Absent some statutory indication to the contrary, the ultimate issue is always what the accused himself intended by or understood about his conduct. The issue in this form must be addressed by the trier of fact; a jury direction which suggests that culpability depends on what the accused ought to have known is a misdirection and can afford grounds for an appeal.

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