R. V. Park - Reasoning

Reasoning

This case discusses the defence of mistaken belief and how there must be an air of reality to that defence, i.e. the accused cannot put forth the defence if there is no air of reality in relation to the evidence in the case. In this particular situation there was little if no evidence that might have substantiated his allegation that he might have had an honest belief that she was giving consent, i.e. she was a born again Christian, she did not believe in premarital sex, the objective evidence of redness on the inner labia, consistent with consensual or non-consensual intercourse.

The opinion of L'Heureux-Dubé J. stresses that there is an issue of treating women and men equally in these types of cases regarding the equality rights that afforded to all by the Canadian Charter of Rights and Freedoms (at page 864):

...ss. 15 and 28 of the Canadian Charter of Rights and Freedoms, guaranteeing equality to men and women, play a special role in the context of sexual assault. In my view, there may be reason to believe that the existing role of consent in the mens rea of the offence of sexual assault raises some concerns with respect to those two provisions of the Charter. Briefly put, the current common law approach to consent may perpetuate social stereotypes that have historically victimized women and undermined their equal right to bodily integrity and human dignity.