Defence of honest but mistaken belief should not go to jury in absence of evidence that accused took reasonable steps to ascertain consent

Accused was charged with having committed sexual assault. Chief Military Judge submitted to court martial panel defence of honest belief in consent. Not guilty verdict was rendered and Crown appealed. On appeal, majority decided that Chief Military Judge could not submit defence to panel. Majority was of view that statutory limitations set out in section 273.2 of Criminal Code should be considered first. Appeal was allowed and new trial was ordered. Accused appealed before Supreme Court of Canada. Appeal dismissed. There was no evidence from which a trier of fact could find that the accused had taken reasonable steps to ascertain that the complainant was consenting. Therefore, the defence of honest but mistaken belief should not have been put to the panel.

R. c. Gagnon (2018), 2018 CarswellNat 5739, 2018 CarswellNat 5740, 2018 SCC 41, 2018 CSC 41, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellNat 233, 2018 CarswellNat 234, 2018 CACM 1, 2018 CMAC 1, B. Richard Bell C.J., Elizabeth A. Bennett J.A., and Johanne Trudel J.A. (Can. Ct. Martial App. Ct.).