Reference no: EM133307674

Question 1:

(1) How did the Court reframe the defence of "Mistaken belief in consent"?

(2) Is the defence available if it is a mistake of law?

(3) With respect to the issue of whether or not the accused took reasonable steps to ascertain that consent had been communicated, what three errors did the trial judge make?

(4) While the Court could not provide a list of what would constitute reasonable steps, it gave at least one example of what would NOT be reasonable steps. According to the Court, what would NOT be reasonable steps to ascertain that consent had been communicated?

Question 2:

Please answer the questions that follow the hypothetical fact situation.

Facts: Ernest and Mabel have been in an exclusive relationship for many months. The relationship has evolved to the point where they enjoy regular sexual intercourse.

Ernest and Mabel agreed in advance that Mabel would take the birth control pill in order to avoid pregnancy, and that Ernest would wear a condom in order to further minimize the risk of pregnancy and also to minimize the chance of a sexually transmitted infection ("STI").

Both parties agreed that sexual intercourse would happen only if Mabel was on the pill and Ernest wore a condom.

Both parties were sexually inexperienced, yet tested themselves for STI's. They both tested negative throughout the relationship.

One night the couple fell asleep beside each other. Ernest woke up in the middle of the night and wanted to have intercourse with Mabel. He snuggled into her, she woke up, and she responded positively. In her drowsy state of mind Mabel assumed that Ernest was wearing a condom; however, Ernest had made a last-minute decision not to wear one. The couple engaged in intercourse and went back to sleep.

The next morning, Mabel noticed that there was no condom wrapper or used condom. She asked Ernest if he had worn a condom and he said no, he had decided not to. He said that he thought she knew he wasn't wearing one. Mabel felt betrayed and ultimately went to the police, who decided to consult a Crown Attorney before charging Ernest with Sexual Assault.

For the purposes of this question, assume that there was no chance of pregnancy or of spreading an STI even without a condom.

In answering the questions below, please do NOT discuss the defence of mistaken belief in consent.

Question 3:

(1) You are the Crown Attorney who is consulted by the police. What would your advice be to the police about laying a Sexual Assault charge against Ernest? In expressing an opinion as to whether or not it would be appropriate to charge Ernest, please refer to the relevant Criminal Code provisions and to any cases that are on point. Please make sure to address whether criminal liability would be based on (1) absence of consent or (2) fraud vitiating consent.

(2) Would your answer be any different if, instead of not wearing a condom, Ernest had poked holes in his condom before putting it on? Please explain, referring to one SCC case.
(3) Instead of Ernest not wearing a condom, assume that Mabel decided that she wanted to get pregnant so, without telling Ernest, she went off the pill. Some months later she becomes pregnant, and confirms to Ernest that she had stopped taking the pill several months earlier. Could Mabel be convicted of Sexual Assault against Ernest? Please explain your answer, again by referring to at least one SCC case.
Question 15

Describe the elements of the offence of sexual assault (actus reus and mens rea) as defined by the Supreme Court of Canada in 1999, and name the case that established these elements.

Question 4:

Please answer the questions that follow the hypothetical fact situation.

Facts: Whoville is a small town in Ontario, population less than 500.

A green person whose real name is unknown, but who calls himself "The Grinch", feels that Christmas is just a commercialized holiday. He takes it upon himself to put an end to Christmas by entering the homes of various people on Christmas Eve and taking the presents from under their trees - not to mention he also steals their stockings that were hung up by the fireplace. One of the victims is a child named Cindy Lou Who.

Later that night, the Grinch has an epiphany and realizes that the spirit of Christmas is a good thing, and he returns all the presents. The Whoville Town Police charge the Grinch with several counts of Theft, as well as counts of Break-and-Enter.

You are a defence lawyer who is retained by The Grinch. He says that, when he took the property, he thought that he was justified in doing so: he thought that Christmas made people miserable and made them spend money that they didn't have, and he thought that he was doing the community a favour by putting an end to Christmas. In other words, he is raising the defence of "colour of right".

How would you advise The Grinch? In answering this question, explain what "colour of right" is, and in what circumstances it would be available. Also refer to at least one helpful case.

Question 5:

Bob is charged with sexually assaulting his ex-girlfriend. Bob's defence is that she consented to the sexual activity, and says that after they broke up they remained friends. As part of that friendship they continued to engage in occasional sexual activity. Bob wants the jury to know about the "friends with benefits" relationship, in order to put the incident in context. The Crown says that Bob should not be allowed to call such evidence, or to make any reference at all to the fact that he had previously, on many occasions, had consensual sex with the complainant.

Name the Supreme Court of Canada decision that answers this question, and state whether the evidence would be allowed or not