Case information

Criminal law — Appeals — Acquittal — Whether Quebec Court of Appeal was allowed to intervene under s. 676(1)(a) of Criminal Code.

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The appellant, Lipson Dubé, was charged with sexual assault. The complainant and Mr. Dubé gave different versions of what had happened the night of the alleged sexual assault. The complainant maintained that Mr. Dubé had penetrated her without her consent, whereas Mr. Dubé alleged that the complainant had had a seductive attitude toward him throughout the evening, and he described what he believed to be consensual sexual intercourse. In fact, he admitted that penetration had occurred not once as the complainant claimed, but three times. He argued that, each time, he believed she had consented. The trial judge found that Mr. Dubé’s version left room for a reasonable doubt. He added that Mr. Dubé’s defence of honest but mistaken belief in consent was plausible. He acquitted Mr. Dubé of the charge laid against him. The Crown appealed against the trial judgment. Given that the trial judge had not identified the reasonable steps taken by Mr. Dubé to ascertain that the complainant was consenting to sex, the majority of the Court of Appeal was of the view that the trial judgment did not lend itself well to appellate review on the issue of honest but mistaken belief in consent. The majority therefore found that the Court of Appeal’s intervention was required. The majority allowed the appeal, overturned the acquittal and ordered a new trial. Vauclair J.A., dissenting, would have dismissed the appeal. In his view, the Court of Appeal’s intervention was unwarranted. The appeal raised no question of law.