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If you’ve been charged with sexual assault, you may feel overwhelmed, ashamed, and terrified about what lies ahead. These cases are legally complex, socially damaging, and carry serious penalties — including prison and mandatory sex offender registration. But there is hope. One of the most misunderstood defences is the honest but mistaken belief in consent. The Ontario Court of Appeal recently clarified this defence in a 2025 ruling: R. v. Al-Akhali.
What Is the Mistaken Belief in Consent Defence?
In Canadian law, an accused can argue that they honestly believed the complainant consented, even if the complainant later says they did not. But the courts have made it clear: this defence is only available if two strict conditions are met:
- The accused honestly believed that the complainant said “yes” through words or clear actions.
- The accused took reasonable steps to confirm that consent was given at the time.
In R. v. Al-Akhali, the Court of Appeal rejected the accused’s defence because he never verbally asked for consent, and the complainant’s conduct (even on his version) did not clearly communicate agreement to sex — let alone unprotected intercourse. The Court emphasized that “relying on kissing or touching alone is not enough to establish consent to penetrative sex.”
Key takeaway: If you didn’t ask for consent, and you’re relying on “signals” or assumptions, this defence will likely fail in court.
Why the Al-Akhali Case Matters
The case involved a 20-year-old man accused of forcible unprotected sex with a woman he had just met. He claimed the interaction was consensual, and that she never said “no.” However, the Court of Appeal upheld his conviction because:
- He did not take reasonable steps to ensure the complainant consented.
- Kissing and removing clothes did not constitute clear consent to intercourse.
- The complainant’s immediate call to security and visible physical injuries supported her version of events.
- There was no discussion about condom use, which undermined any claim of mutual understanding.
Despite upholding the conviction, the Court reduced his five-year sentence to three years, acknowledging his youth, lack of prior record, and potential for rehabilitation — critical factors if you’re a first-time offender.
What Should You Do If You’re Facing a Sex Crime Charge?
If you’re searching for:
- “Can I use mistaken belief in consent as a defence?”
- “Charged with sexual assault but I thought it was consensual”
- “Accused of rape — what’s the defence?”
…you need legal advice now.
The law is strict: the courts no longer accept silence, assumptions, or passivity as valid signs of consent. Unless you clearly asked, your defence may collapse in court.
At David Genis Law, we understand how to:
- Build a credible defence based on evidence, consent, and reasonable steps.
- Challenge the complainant’s credibility, when justified by facts.
- Navigate section 273.2 of the Criminal Code and show where police or Crown may have overstepped.
- Present mitigating factors like youth, clean record, family obligations, or remorse — all of which helped reduce the sentence in R. v. Al-Akhali.
You Deserve a Vigorous Defence — Don’t Wait
The sooner you speak to a lawyer, the better your chances. If you’re facing allegations, don’t talk to police, don’t post about it online, and don’t rely on myths about consent.
Call now for a confidential case review with a criminal defence lawyer experienced in sex assault defence, mistaken belief in consent, and Charter violations.
