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Decision information:
Abstract: Transcript of the Ruling on the Proposed Defence of Mistaken Belief
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R. v. Kochon, 2010 NWTSC 25 S-1-CR-2008-000101 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - V - GREGORY MARK KOCHON _________________________________________________________ Transcript of the Ruling on the proposed defence of mistaken belief in consent by The Honourable Justice J. E. Richard, sitting in Norman Wells, in the Northwest Territories, on the 10th day of March, A.D., 2010. _________________________________________________________ APPEARANCES: Mr. J. MacFarlane: Counsel for the Crown Ms. C. Wawzonek: Counsel for the Defence ------------------------------------------ Charges under s. 348(1)(b) & 271 Criminal Code of Canada Official Court Reporters 1 THE COURT: Good morning everyone. I am 2 now going to give the Court's ruling on the 3 request for a charge on the mistake of fact 4 defence. 5 In this case the complainant has given 6 evidence to the jury in which she describes 7 being sexually assaulted by the accused at 8 approximately 4:00 in the morning in her bedroom, 9 in her residence. She was somewhat intoxicated 10 when she went to sleep in her bed, fully clothed, 11 with her seven-year-old daughter in the bed 12 beside her. She awoke to find that she was 13 naked, that the accused was on top of her, and 14 that the accused was having sexual intercourse 15 with her. 16 The accused testified at his trial and told 17 the jury that he dropped by the complainant's 18 residence at approximately 4 a.m., knocked at the 19 door, and was let in by the complainant's 20 seven-year-old daughter. He went to the 21 complainant's bedroom and had beer with her, had 22 a conversation with her. Then he and the 23 complainant had consensual sex and then he left 24 and went home. 25 Defence counsel asks that in addition to 26 putting the defence of consent to the jury that 27 the defence of honest but mistaken belief in Official Court Reporters 1 1 consent be also put to the jury for their 2 consideration. As a result of this request I 3 have carefully reviewed all of the evidence and I 4 have decided that there is simply no air of 5 reality to such a defence in this case. In 6 particular, the accused in his testimony is not 7 saying that he "thought the complainant was 8 consenting." His evidence is rather to the 9 effect that she was consenting and indeed was an 10 active participant in the sexual activity. 11 In my careful review of the evidence I find 12 that it is simply not possible for the jury to 13 "cobble together" portions of the complainant's 14 evidence and portions of the accused's evidence 15 to construct a scenario whereby the complainant 16 was in fact not consenting, but that the accused 17 honestly but mistakenly believed she was 18 consenting. No trier of fact could construct 19 such a scenario from the evidence in this case, 20 hence there is no air of reality to such a 21 defence. R. v. Somers 2009 ONCA 567 cited by 22 defence counsel is distinguishable. 23 For these reasons, the defence of mistaken 24 belief in consent will not be put to the jury in 25 the charge. 26 ----------------------------- 27 Official Court Reporters 2 1 2 Certified to be a true and accurate transcript, pursuant 3 to Rules 723 and 724 of the Supreme Court Rules. 4 5 _____________________________ 6 Joel Bowker Court Reporter 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 3
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