R v Legresley, 2023 SKCA 71

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3430 Citation: R v Legresley , 2023 SKCA 71 Date: 2023-06-15 Between: His Majesty the King Appellant And Timothy Legresley Respondent Before: Richards C.J.S., Caldwell and Drennan JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Drennan On appeal from: CRM 130 of 2019 (Sask QB), Saskatoon Appeal heard: November 28, 2022 Counsel: Erin Bartsch for the Appellant Kathy Hodgson-Smith, K.C. for the Respondent Richards C.J.S. I. Introduction [ 1 ] Timothy Legresley was charged with sexually assaulting a female complainant, contrary to s. 271 of the Criminal Code .

He was also charged with two counts of violating s. 161(4) of the Criminal Code by using the internet to communicate with the complainant and another woman in breach of a prohibition against employing it for such purposes. [ 2 ] This appeal concerns the sexual assault charge. It flowed out of a circumstance where Mr. Legresley removed the complainant’s clothing, touched her sexually in various ways and ultimately had sexual intercourse with her. The trial judge found that the complainant had not consented to the sexual activity but acquitted Mr.

Legresley on the basis that the Crown had failed to prove the necessary mens rea , apparently finding that Mr. Legresley had honestly believed that the complainant had communicated her consent to the activities in issue. [ 3 ] The Crown appeals from the acquittal. It argues that the trial judge made errors of law in his assessment of the issue of honest but mistaken belief in communicated consent. As explained below, I agree with those submissions and would set aside Mr. Legresley’s acquittal and remit this matter to the Court of King’s Bench to be tried again. II. Background A.

The lead-up to the incident [ 4 ] The complainant was 23 years old at the relevant time. She lived in a town just outside of Saskatoon. Mr. Legresley was 35. He lived in Saskatoon. The two met on an online dating website. [ 5 ] The complainant and Mr. Legresley communicated through the website for about a month. The complainant eventually felt comfortable enough to provide Mr. Legresley with her phone number. It took some time before she agreed to meet him in person. They then got together in public places over the course of a month or two. The first time the complainant agreed to spend time with Mr.

Legresley in private was on the date of the alleged offence. [ 6 ] On that day, Mr. Legresley and the complainant went to his apartment so she could work with him on sign language, a subject of interest to her. They met at her workplace. She left her car there and accepted a ride from him. Mr. Legresley and the complainant spent several hours at the apartment. They sat beside each other on the couch and practiced sign language, listened to music and played a game on the complainant’s phone. Neither of them consumed drugs or alcohol. Mr. Legresley eventually initiated sexual contact with the complainant.

The only evidence in respect of the alleged assault itself came from the complainant and from Mr. Legresley. B. The complainant’s testimony

[ 7 ] The complainant testified that she had never been interested in anything other than a platonic friendship with Mr. Legresley. She said Mr. Legresley had moved closer and closer to her on the couch and had eventually started kissing her. She indicated that she became “just frozen” when he forced his tongue inside her mouth and that, although she did not respond to him, Mr. Legresley continued kissing her and started taking off her clothes. [ 8 ] The complainant said that Mr. Legresley proceeded to remove her sweater, t-shirt and bra and then begun sucking on one of her breasts.

Next, he started taking off his clothes and proceeded to remove her pants and underwear while she remained “frozen”. When they were both naked, Mr. Legresley very roughly put his fingers in her vagina and then, not using a condom, put his penis into her vagina and begun thrusting in and out. The complainant indicated that she “continued to remain motionless, a frozen statue” and that Mr. Legresley eventually asked her if she was comfortable. When she said “no”, he put a pillow behind her head and went back to having sexual intercourse with her. She recounted that she was crying by this point, and that Mr.

Legresley had eventually stopped. They both then got dressed and Mr. Legresley drove her back to her car. [ 9 ] The complainant testified that the interaction on the couch had occurred over the course of about ten minutes. She indicated that she had said “no” three times: once when Mr. Legresley’s mouth was on her breast; once when his fingers were inside her; and once when Mr. Legresley had asked her if she was comfortable. The complainant testified that she had never said “yes” and that she had not pushed back or actively resisted Mr.

Legresley because she was “frozen” in what she described as “fight or flight response, and I was the one that was just unable to fight back”. [ 10 ] The complainant sent Mr. Legresley a text message the next day which read as follows: Do you understand why I don’t trust people? Do you understand why I don’t trust MEN? Do you understand why I stay by myself? Why I like it that way? This is exactly why I don’t open up to people. I keep things inside for this exact reason. I realize I’m easy to take advantage of because I can’t say no. But no response should have been a loud and clear No!! But apparently it wasn’t.

I was so wrong. Yet again [ 11 ] She also sent text messages saying “Jesus Christ!!! Why can’t people accept the NO for what it is!!!” and “I said NO!!!!!!” [ 12 ] The complainant contacted the police three days after her visit to Mr. Legresley’s apartment. This led to charges being laid. C. Mr. Legresley’s testimony [ 13 ] Mr. Legresley testified that the complainant had started out sitting on one end of the couch and that he had sat in the middle.

He explained that they had practiced sign language, played a game that the complainant enjoyed and listened to music. “[T]hings were going good”, so he asked the complainant if he could kiss her. He said that she had been smiling and giggling as they kissed, so he had “progressed to putting [his] hands on her body”. Mr. Legresley said that he had lifted up the clothes that the complainant was wearing above her waist, i.e., her shirt and so forth. He recounted that she had taken those clothes the rest of the way off. [ 14 ] Mr.

Legresley went on to say that he had kissed the complainant on her body and that he was intending to perform oral sex when she had said “no”. He explained that he had “perceived [her saying “no”] as it being she didn’t like that particular sex act of oral”, so he had “moved on to something else”. [ 15 ] Mr. Legresley said that the complainant “just didn’t look comfortable”, so he had given her a pillow. He explained that he had then proceeded to penetrate the complainant with his fingers, indicating that “she didn’t say nothing. She seemed to be okay. I didn’t hear anything from her at that time”.

He had then gone on to sexual intercourse. However, Mr. Legresley indicated that when, after a minute or two of sexual intercourse, the complainant “still looked uncomfortable”, he had asked her if she was okay and, when she had responded “no”, he had asked her if she wanted to stop. When the complainant responded affirmatively to that question, Mr. Legresley said that he had stopped. He explained that they both then got dressed and that he had driven the complainant to her car. [ 16 ] Mr. Legresley testified that he had not seen the complainant crying.

When asked why he had thought she had been agreeing to have him touch her body, he responded in this way: She -- well, she never -- I -- I never heard her say anything. Well, at the kissing, at first she was laughing and -- and seemed to be enjoying it. And with the rest, she never -- I didn’t hear her object or say no to anything, so I -- from my point of view, I thought that she was okay and enjoying it. [ 17 ] In cross-examination, Mr. Legresley clarified some answers he had given during examination-in-chief.

He indicated that, when he was about to perform oral sex and the complainant had said “no”, he had asked her “if it was oral sex” and that she had shaken her head to indicate “no”. He testified that he had not sought any clarification of her response and had taken it to mean only that she did not like oral sex. He also acknowledged that at no time had the complainant ever said “yes” and that he had never asked her at the beginning of the encounter if she wanted to engage in sexual activity. [ 18 ] Mr. Legresley also testified that he had a hearing impairment.

He indicated that he had not heard the complainant say anything during the sexual activity except for the “no” that he had taken as relating to oral sex and her comments at the very end that had led him to stop. However, Mr. Legresley also acknowledged that, in response to text messages from the complainant after the incident where she had written “I said NO” with multiple exclamation points and “Jesus Christ!!! Why can’t people accept the NO for what it is!!!”, he had not replied by saying or explaining that he had not heard her. III.

The trial decision [ 19 ] The trial judge prepared a written decision: R v Legresley (26 February 2021) Saskatoon, CRM 130 of 2019 (Sask QB). He began by reviewing the evidence in some detail and by outlining the positions of the Crown and Mr. Legresley. At the start of the

“Analysis” part of his judgment, the trial judge observed there was agreement that Mr. Legresley and the complainant had had sexualrelations at the time referred to in the indictment and that the only issues were: (

a) whether the complainant had consented; and (b)whether Mr. Legresley had an honest but mistaken belief that the complainant had consented. [20] The trial judge dealt first with the actus reus of the alleged offence. He began by correctly noting that it has three elements:(

a) touching; (

b) the sexual nature of the touching; and (

c) the absence of consent. The trial judge found that each of these elements hadbeen proven beyond a reasonable doubt. With respect to the issue of consent, he wrote as follows: [27] I am satisfied, based upon the totality of the evidence, that the complainant did not consent to the sexual activity. I am satisfiedthat the Crown has proven beyond a reasonable doubt that the complainant had no romantic thoughts towards the accused and that, as shestated, she “froze” when the accused began kissing her.

The allegation that the complainant may have said “yes” to the accused kissingher, that she may have raised her arms to assist in removing her bra and that she did not object verbally to him removing the rest of herclothes does not mean that she consented to the sexual activity. I am satisfied that the complainant’s evidence was both credible andreliable concerning the issue of consent and that she had no motive to fabricate her evidence on this issue.

The actus reus of the offence ofsexual assault has, therefore, been established beyond a reasonable doubt. [21] The trial judge then went on to consider whether the Crown had proven the mens rea feature of the offence. In finding that ithad not, and as I understand it, the trial judge concluded Mr. Legresley had honestly but mistakenly believed that the complainant wasconsenting to the sexual activity in issue. He wrote as follows: [35] I am satisfied in the circumstances that the accused did take reasonable steps, including asking her if he could kiss her andprogressing only when she said yes.

The accused was aware throughout of the complainant’s reactions to his advances to her. I find thather reactions were permissive. This was not a situation where he complainant was intoxicated or that either of them had taken drugs oralcohol prior to the incident. The complainant cooperated in the removal of her clothes and had seemed to be a willing participantthroughout. I find that the accused’s hearing difficulties may have led him to miss any statements from the complainant objecting to hisactions.

I find that the complainant appeared to consent through her conduct to all the sexual activities up to the point when the accusednoticed a lack of participation on her part and asked her if everything was okay. When she answered “no” and told him she wanted to gohome, he stopped immediately. When this participation is combined with her text #58 the day after the incident saying “… I realize I’measy to take advantage of because I can’t say no …”, I am left with a reasonable doubt as to whether the accused had the mens rearequired.

Applying the R v W.(D.) [ (SCC), [1991] 1 SCR 742] analysis, where the accused testifies, I find that I have areasonable doubt that the Crown has proven that the accused had the necessary mens rea when I consider the accused’s testimony and allof the evidence on this issue. I find, therefore, that the Crown has failed to prove beyond a reasonable doubt that the accused had the mensrea to commit this offence. [22] Mr. Legresley entered guilty pleas on the two charges of breaching s. 161(4) of the Criminal Code. He was acquitted on thesexual assault charge. IV.

ANALYSIS [23] Section 676(1) of the Criminal Code provides for an appeal against a verdict of acquittal “on any ground of appeal that involvesa question of law alone”. In order to succeed on an appeal of this kind, the Crown must establish that the trial judge’s error mightreasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal. See: R v Graveline, 2006 SCC 16at para 14, [2006] 1 SCR 609; R v Cowan, 2021 SCC 45 at para 46, 409 CCC (3d) 287. [24] In this case, the Crown submits that the trial judge erred in law in his treatment of the issue of mens rea.

More particularly, itcontends the trial judge erred when he considered the question of honest but mistaken belief in consent and that this error led to Mr.Legresley’s acquittal. As explained below, this argument is well founded. A. Governing principles [25] The mens rea of sexual assault has two components: the intention to touch and knowledge of, or being reckless about orwilfully blind to, a lack of consent on the part of the complainant. See: R v Ewanchuk, (SCC), [1999] 1 SCR 330[Ewanchuk].

In this context, “consent” is defined by s. 273.1(1) of the Criminal Code to mean “the voluntary agreement of thecomplainant to engage in the sexual activity in question”. [26] An accused may take issue with the Crown’s evidence with respect to mens rea by asserting an honest but mistaken belief inconsent. To make out this defence, an accused must have an honest but mistaken belief that the complainant communicated consent,whether by words or conduct. See: Ewanchuk at paras 37, 42 and 48; R v Park, (SCC), [1995] 2 SCR 836 at paras 39,43–44.

As explained in R v Barton, 2019 SCC 33 at para 92, [2019] 2 SCR 579 [Barton], the requirement of communicated consent isintended to avoid judges and juries “straying into the forbidden territory of assumed or implied consent”. [27] There are restrictions on the extent to which consent can be relied upon to defend against a charge of sexual assault. Section273.1 of the Criminal Code provides as follows: 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question.

(1.1) Consent must be present at the time the sexual activity in question takes place.

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

(2) For the purpose of subsection (1), no consent is obtained if

(

a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [*] [ 28 ] Of more direct relevance to this appeal, s. 273.2 of the Code imposes limits on the scope of the defence of honest but mistaken belief in communicated consent. It says this: 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness , or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. * (Emphasis added) [ 29 ] This means that it is a mistake of law to proceed on the basis that “silence, passivity or ambiguous conduct” constitutes consent. See: Ewanchuk at para 51 . As the Supreme Court indicated in Barton at paragraph 98 , “[i]n short, it is an error of law – not fact – to assume that unless and until a woman says ‘no’, she has implicitly given her consent to any and all sexual activity”.

Further, “a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact”. See: Barton at para 99 . As the Supreme Court said in R v J.A. , 2011 SCC 28 at para 34 , [2011] 2 SCR 440 [ J.A. ], and repeated in Barton at paragraph 99 , “the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind”. [ 30 ] I pause here to note that, on Mr.

Legresley’s own account of what happened on the day in question, he revealed himself to have been operating on the basis of a fundamental error of law concerning the complainant’s consent, not on the basis of an error of fact. More specifically, Mr. Legresley proceeded on the ground that, unless and until the complainant said “no”, she was implicitly giving her consent. That is made clear by the following part of his testimony during his examination-in-chief: Q So when you’re having -- when you’re kissing her and touching her body and those things, why did you think that she was agreeing to that?

A She -- well, she never -- I -- I never heard her say anything. Well, at the kissing, at first she was laughing and -- and seemed to be enjoying it. And with the rest, she never -- I didn’t hear her object or say no to anything, so I -- from my point of view, I thought that she was okay and enjoying it. B. The trial judge’s error [ 31 ] In my respectful view, the trial judge erred in his consideration of the alleged sexual assault by failing to deal with the question of whether the required mens rea could be made out on the basis that Mr.

Legresley had been reckless as to whether the complainant was consenting to the sexual touching. Let me explain. [ 32 ] As noted above, in order to establish the mens rea of sexual assault, the Crown must prove beyond a reasonable doubt that the accused (

a) intended to touch the complainant, and (

b) knew that the complainant did not consent to the touching or was reckless about, whether, or wilfully blind to the fact that, the complainant did not consent to the touching. In this case, the matter of recklessness was very much a live issue given the substance of Mr. Legresley’s testimony. His version of what happened was explained as follows in examination-in-chief:

A Then I progressed to continue on and kissing -- kissing her on her body. And went to the next step to -- which was -- what we were -- I was going -- it was oral. At that time, she said -- she said, no, to -- to that, which I perceived as it being she didn’t like that particular sex act of oral. So I proceeded to -- we moved on to something else. So to make her comfortable, I give her a -- I grabbed a pillow and laid her on the -- laid her on the couch. Q Why did you grab a pillow? A I thought she was uncomfortable. Q Why did you think that?

A Because she had said no earlier, so I -- and I felt, you know, that she just wasn’t comfortable. She just didn’t look comfortable, so it [ sic ] thought maybe she was just -- it’s an old couch, so I figured maybe she’s just sore or her back’s getting sore, so I gave her a pillow. So I wanted her to be comfortable. Q Okay. And so, then what happened? A Then we -- I proceeded to -- I’m not sure what the word is. Finger -- finger penetration, I guess, or fingering and rubbing. And she didn’t say nothing. She seemed to be okay. I didn’t hear anything from her at that time.

After that, I proceeded to actual penetration, like, for sex. Q M-hm. A And after a moment or a minute or two, she still looked uncomfortable, so I asked her if she was okay, like, point-blank. And she said no. Then I proceeded to ask her, Are you -- do you want to stop? She said yes. And at that time I -- I -- that was it. We stopped. (Emphasis added) [ 33 ] During cross-examination, Mr. Legresley went on to provide the following additional testimony: Q When [the complainant] said no, you didn’t clarify with her what she was saying no to?

A Actually, I asked her, was she -- if it was oral -- if she didn’t like oral sex. And I perceived it when -- when I was talking to her, I perceived that that’s what it was. Q But by perceiving, you didn’t ask her outright, When you say no, what do you mean? A Correct. … Q But saying that you never heard her object is wrong because she did say no, didn’t she? A Which is what I felt was the oral sex. Q Because you didn’t ask or clarify with her what she meant? A With -- all I asked her was if she was -- about the oral sex. That’s what I asked her. Q Oh, and what did she say then?

A She just said she didn’t like oral sex. Q Okay. You didn’t say that to your lawyer when she asked you the question? A No. I just missed it, apparently. But she just -- from what I -- from what I understood what she said was she didn’t like oral sex. So that’s why we proceeded -- proceeded on to something else. Q So she said to you, no, I don’t like oral sex? A Well, I asked her if it was oral sex and she shook her head no, so I took that as a - - as a sign as -- as … Q So you felt that she participated fully throughout this interaction?

A I felt that she got quiet and I felt that she was okay up until the end when I asked her straight out if she was okay. And when she told me no, and I asked her if she wanted to stop, and she said yes, and I immediately stopped. Q And when you said you asked her straight out or straight up whether she wanted to continue, that was only after the majority of the sexual interaction. A It was -- it was when there was intercourse, correct. Q Yeah. You didn’t ask at the beginning? A I didn’t hear that, sorry? Q You didn’t ask at the beginning? A No.

Q I’m going to suggest to you that at no time [the complainant] said yes. A Okay. Q Would you agree with me? A For words? Yes. Q She never used the word “yes”? A Correct. Q And when [the complainant] said “no”, you used your own perception to decide what “no” meant? A Yes. I used my perception. Q Instead of asking her? A Correct. (Emphasis added)

[34] As indicated, this testimony put the issue of recklessness on the table. According to Mr. Legresley, the complainant said “no”.He asked her if it was the oral sex and she shook her head, so as to thereby indicate “no”. On the face of things, this would seem to havemeant that the complainant was objecting to something more or different than oral sex. Otherwise, when asked if her “no” related to theoral sex, she might have been expected to have nodded or replied “yes”. However, Mr.

Legresley appears to have done nothing to clarifythe situation and to have instead proceeded to digital penetration and sexual intercourse. Only then, it would seem, did he inquire if thecomplainant was okay and, on receiving a negative response, asked her if she wanted to stop. [35] All of this serves to engage what the Supreme Court said in Ewanchuk about this very sort of situation: [52] Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accusedshould make certain that she has truly changed her mind before proceeding with further intimacies.

The accused cannot rely on the merelapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent nowexists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at aminimum, reckless conduct which is not excusable. In R. v.

Esau, (SCC), [1997] 2 S.C.R. 777, at para. 79, the Courtstated: An accused who, due to wilful blindness or recklessness, believes that a complainant … in fact consented to the sexual activity at issue isprecluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code, s.273.2(a)(ii). (Emphasis added) See also: R v A.E., 2022 SCC 4. As the Supreme Court emphasized in R v Goldfinch, 2019 SCC 38 at para 44, [2019] 3 SCR 3, “[t]oday,not only does no mean no, but only yes means yes.

Nothing less than positive affirmation is required”. [36] The difficulty with the trial judge’s analysis, or lack of analysis, on this front is underlined by the fact that the complainant’sversion of what had happened did not by any means line up with Mr. Legresley’s version. She testified that she had said “no” threeseparate times. The complainant also indicated that the only inquiry that Mr. Legresley had made of her was when, while engaged inintercourse, he had asked if she was comfortable.

The relevant part of the testimony from her examination-in-chief is as follows: And after he was done using his fingers, he put his penis inside my vagina, nocondom, and he started thrusting in and out. I was – I continued to remainmotionless, a frozen statue. He asked me if I was comfortable, and I said, No.And so he will have figured that I just was uncomfortable in that – like, on thecouch in that like how he had me laying there. So he grabbed a pillow that wason the chair beside the couch, and he put it under my head.

And then he – hewent right back to thrusting in and out, and I’m crying while I’m laying there.And I – I had told him, No. Like, I didn’t use, like, Don’t do that, but, like, thatwhen I said, No, to him, I meant no as in I’m not consenting to this.Q When did you say, No?A I said, No, when he had his mouth on my breast and then I had told him, No,again when he had his fingers inside of – inside of me. He realized that I wascrying, and I wasn’t responding to him, so he stopped. And he asked me if I wasokay, and I said, No, I’m not okay. I said, I want you to take me back to my carbecause I want to go home.… Q Okay.

You told us – you described three times that you said, No, to Tim: oncewhen your – his mouth was on your breast, again when his fingers were insideyou, and another time when he asked if you were comfortable?A That’s correct.Q What, if any, other conversation did you have with Tim during this time?A No conversation at all. (Emphasis added) [37] In cross-examination, the complainant also said this: Q Okay. Thank you. Now, did I hear you correctly this morning where you saidthat really Tim had not sent -- said anything to you while the two of you were onthe couch in where you were doing sexual things?

Tim had not talked to youduring that time?A The only thing he said to me during that time was he asked me if I wascomfortable, and I said, No.Q And that’s where he went and shifted the pillows on the --A Yeah.

That’ll be where he grabbed the pillow from the chair that was rightbeside the couch and put it on the -- on the couch underneath of my head.… Q Now, after that incident if I heard you correctly this morning, after he asked youif you were comfortable, and you said, No, and then he did the pillow thing, Ithink it’s you said when the two of you were having intercourse that you toldhim, No, and he said, Okay, and got off of you? Is that what you said thismorning?A No. He got off of me because I started crying, and he seen that I was crying. Q Okay. So you believed that he saw you crying?

A I mean yes. It would be pretty hard to miss the tears. I mean he’s right on top ofme, and the tears are just coming down. I mean my face is wet.Q Okay. So you believe he got off of you when he noticed that you were crying?A Yes. (Emphasis added) [38] Unfortunately, the trial judge did not make express findings of fact to sort out Mr. Legresley’s version of events from the oneoffered by the complainant. This had the effect of muddying the waters even more on the issue of recklessness. [39] It follows from all of this that the trial judge erred in law in his assessment of Mr.

Legresley’s “honest but mistaken belief inconsent” defence. There can be no doubt that this error went directly to the bottom line of the trial judge’s reasoning and led to hisdecision to acquit Mr. Legresley. V. CONCLUSION [40] As noted, I conclude that the trial judge erred in law when considering the issue of honest but mistaken belief in communicatedconsent. As a result, Mr. Legresley’s acquittal must be set aside. [41] The final question, then, is whether there should be a new trial or whether, as submitted by the Crown, this Court should enter averdict of guilty. The law on this issue is well settled.

A conviction should be substituted for an acquittal only when all of the factsnecessary to support a verdict of guilty have been explicitly made by the trial judge or are not in issue. A conviction should be enteredonly in the clearest of cases. See: R v Cassidy, (SCC), [1989] 2 SCR 345 at 353; R v McRae, 2013 SCC 68 at para 39,[2013] 3 SCR 931. Here, the facts as to exactly what happened during the course of the incident were not resolved by the trial judge withsufficient clarity to warrant this Court entering a verdict of guilty. [42] Accordingly, by way of an end result, I would set aside Mr.

Legresley’s acquittal and remit this matter to the Court of King’sBench to be retried. “Richards C.J.S.” Richards C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Drennan J.A.” Drennan J.A.