Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape. As a defense, Ah-Chong claimed that the victim consented to the sexual activity. The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed. The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape. The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape. The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable. The Court rejected this jury instruction. The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape. The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.
Ah-Chong v. The Queen