Facts[]
George Pappajohn put his house up for sale through a real-estate company. He met with a female real-estate agent from the company at a bar. They had lunch together, including drinks, over the course of approximately three hours, after which the two went to Pappajohn's house where they engaged in sexual intercourse. After the event the woman was seen running out the house naked, wearing a bow-tie, with her hands bound. The agent claimed that she was raped however, Pappajohn claims that short of a few coy objections she had consented. Pappajohn was convicted at trial which he appealed as the judge refused to put to the jury whether Pappajohn should be able to claim that he mistakenly believed that she had consented. His appeal was dismissed by the Court of Appeal and was appealed to the Supreme Court.
Issue[]
- What is the required mens rea for rape?
- Is actus reus a pertinent factor in this case ?
Decision[]
Appeal dismissed.
Reasons[]
McIntyre, writing for the majority, first discussed the question of when a defence should not be put to a jury. He held that a defence should be used when there is "some evidence which would convey a sense of reality in the submission." On the facts, he found that there was no evidence, other than the statement of the accused, that if believed, would have allowed for the possibility of consent. Accordingly, the lower court ruling was upheld.
Dickson dissented, and stated that the defence was derived from the mens rea requirement which is a subjective standard, and consequently the mistaken belief did not need to be reasonable, it just needed to exist..
Ratio[]
For a defence of mistake of fact in consent to be available to the accused, there must exist some reasonable evidence which would convey a sense of reality.
Notes[]
- Section 265(4) of the Criminal Code as amended now provides explicit direction on belief of consent.
- The direction in this case was clarified in R v Sansregret.