Appeal from a sexual assault conviction. Accused did not testify. Defence position was that an air of reality existed regarding an honest belief in consent, and that the trial judge erred in finding that the accused had to testify to establish a subjective belief in consent.

Held: Appeal dismissed.

It was not necessary that the accused testify in order for the defence of honest but mistaken belief in consent to be raised. However, the defence did not arise on the facts. The complainant said “no” and “stop” to the accused as he rubbed up against her and touched her vagina. “Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable”: Ewanchuk, [1999] 1 SCR 330.

D. Gibson – Defence Counsel