Man who be­lieved he could have sex with wife any­time gets new trial

Court of Ap­peal for On­tario cites ju­di­cial er­rors

National Post (Latest Edition) - - CANADA - An­drew duffy

OT­TAWA • A new trial has been or­dered for an Ot­tawa man who won ac­quit­tal on sex as­sault charges based on his hon­est be­lief that he could have in­ter­course with his wife any­time.

The Court of Ap­peal for On­tario said the judge in the case com­mit­ted a se­ries of er­rors.

On­tario’s high­est court said the hus­band, iden­ti­fied only as Mr. E., should not have been ac­quit­ted of sex­ual as­sault based on the be­lief — shared with his wife — that he could have sex with her when­ever he wanted.

Among other things, the court said, it was not the de­fence he pre­sented.

“This was a cred­i­bil­ity case in which Mr. E did not raise the hon­est, but mis­taken be­lief in con­sent de­fence dur­ing the trial, and it should not have been con­sid­ered,” the ap­peal court ruled.

What’s more, the court said, to avoid con­vic­tion based on an hon­est, but mis­taken be­lief in con­sent, an ac­cused per­son’s view­point must be grounded in a fact sce­nario that could give rise to law­ful con­sent. That didn’t ex­ist in the case of Mr. E.

“To the ex­tent the trial judge based his ac­quit­tal on Mr. E.'s and the com­plainant’s shared be­lief would be a mis­take of law that can­not form the foun­da­tion for an hon­est, but mis­taken be­lief in con­sent de­fence,” the ap­peal panel said.

The ac­cused can­not be named be­cause of a court or­der that pro­tects the iden­tity of his wife.

De­fence lawyer Anne Marie McEl­roy said she was in the un­usual po­si­tion of ar­gu­ing in favour of a re­trial on ap­peal af­ter her client’s ac­quit­tal.

“The er­rors in law were pretty stark and dif­fi­cult to ar­gue against,” McEl­roy said.

A new trial date has yet to be set.

The ac­quit­tal made head­lines in Oc­to­ber 2017, when On­tario Su­pe­rior Court Jus­tice Robert Smith said the Crown had failed to prove the ac­cused had formed the re­quired crim­i­nal in­tent — mens rea — to sex­u­ally as­sault his wife in 2002.

The judge ruled the man was not guilty be­cause the Crown had failed to es­tab­lish he knew his be­hav­iour was crim­i­nal in light of his be­lief that he had the right to sex with his wife with­out her con­sent.

The wife tes­ti­fied that, dur­ing their mar­riage — they were joined in an ar­ranged mar­riage in the Gaza Strip — she con­sid­ered it her obli­ga­tion to have sex with her hus­band.

The cou­ple sep­a­rated in Jan­uary 2013.

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