R. v. Laybourn, Bulmer and Illingworth

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Citation: (1987), 75 N.R. 271 (SCC),1987 CanLII 56 (SCC),[1987] 1 SCR 782,39 DLR (4th) 641,75 NR 271,[1987] SCJ No 28 (QL),[1987] 4 WWR 577,33 CCC (3d) 385,58 CR (3d) 48,14 BCLR (2d) 196
• Date: 04 June 1987

R. v. Laybourn (1987), 75 N.R. 271 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Laybourn, Bulmer and Illingworth

(18221)

Indexed As: R. v. Laybourn, Bulmer and Illingworth

Supreme Court of Canada

Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

June 4, 1987.

Summary:

A prostitute agreed to provide her services to one of the accused. When she entered a hotel room and saw the other two accused she objected to their presence. Two of the accused left but returned shortly and told her that she would have to perform sexual acts without pay. Two accused were convicted of rape and the third was convicted of indecent assault. The British Columbia Court of Appeal, in a judgment reported in (1983), 10 C.C.C. (3d) 256, dismissed the accused's appeal from conviction and the accused launched a further appeal.

The Supreme Court of Canada allowed the appeal and ordered a new trial.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - Mistaken belief in consent - The Supreme Court of Canada discussed the defence of "mistaken belief in consent" and stated that if an accused entertained an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non-criminal, he was entitled to an acquittal - See paragraph 9.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - Mistaken belief in consent - The Supreme Court of Canada discussed the defence of "mistaken belief in consent" and stated that s. 244(4) of the Criminal Code did not require that the mistaken belief be reasonable or reasonably held - The section only made it clear that in determining the issue of the honesty of the asserted belief, the presence or absence of reasonable grounds for the belief were relevant factors for the jury's consideration - See paragraph 13.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - Mistaken belief in consent - A prostitute agreed to provide her services to one of three accused - When she entered a hotel room and saw the other two accused, she objected to their presence - Two of the accused left but returned shortly and told her that she would have to perform sexual acts without pay - The Supreme Court of Canada held that there was sufficient evidence for the defence of mistaken belief in consent to be put to the jury.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - The Supreme Court of Canada stated that in his charge, a trial judge had to put to the jury all defences that could arise upon the evidence, whether or not they were raised by counsel - However, a trial judge was not bound to put every defence suggested by counsel in the absence of some evidentiary base - See paragraph 10.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - The Supreme Court of Canada stated that when a defence was raised, the first step for the trial judge was to decide if the defence should be put to the jury while the second step required the judge to explain the law to the jury, review the relevant evidence, and leave the jury with the issue of guilt or innocence - To leave the defence to the jury there had to be evidence before the court that gave the defence an air of reality.

Cases Noticed:

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 9].

R. v. Robertson, 75 N.R. 6, refd to. [para. 9].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 11].

Kelsey v. R., [1953] 1 S.C.R. 220, refd to. [para. 11].

R. v. Workman and Huculak, [1963] S.C.R. 266, refd to. [para. 11].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1, refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 246.4 [para. 23]; sect. 244(4) [paras. 13, 14]; sect. 618(1)(a) [para. 5].

Authors and Works Noticed:

Blackstone, Commentaries on the Laws of England (1962 Ed.), vol. 4 [para. 9].

Heilbron Report, Report of the Advisory Group on the Law of Rape (1975) [para. 12].

Counsel:

Howard Rubin and Kenneth S. Westlake, for the appellants;

Catherine Ryan, for the respondent.

This appeal was heard on February 7, 1986, before Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On June 4, 1987, the decision of the Supreme Court of Canada was delivered and the following opinions were filed:

McIntyre, J. (Dickson, C.J.C., Wilson, Le Dain and La Forest, JJ., concurring) - see paragraphs 1 to 18;

Lamer, J. - see paragraphs 19 to 26.

Chouinard, J., did not take part in the judgment.

This appeal was heard on February 7, 1986, before Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On June 4, 1987, the decision of the Supreme Court of Canada was delivered and the following opinions were filed:

McIntyre, J. (Dickson, C.J.C., Wilson, Le Dain and La Forest, JJ., concurring) - see paragraphs 1 to 18;

Lamer, J. - see paragraphs 19 to 26.

Chouinard, J., did not take part in the judgment.</P></SEG>