Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Ruling on the Proposed Defence of Mistaken Belief
Decision Content
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
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Charges under s. 348(1)(b) & 271 Criminal Code of Canada
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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
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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.
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2 Certified to be a true and
accurate transcript, pursuant
3 to Rules 723 and 724 of the
Supreme Court Rules.
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6 Joel Bowker
Court Reporter
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