MISTAKE OF FACT: THE LEGACY OF PAPPAJOHN V. THE QUEEN

Abstract

The Supreme Court of Canada decision in Pappajohn v. The Queen acknowledged, in relation to a charge of rape, the defence of "honest belief in consent", and it endorsed the subjective approach to mens rea by holding that an honest belief need not be reasonable. However, the case also dealt with the evidential question of when the trial judge should have placed the "defence" before the jury. Although the crime of rape has been abolished, the fundamental issues raised by the case still remain. This article re-examines the judgments rendered in Pappajohn, and the cases which have been decided subsequently, to determine how the evidential question has been resolved. It suggests that the test applied and explained in Pappajohn to determine when the defence should be left to the jury is being so rigidly applied that we are losing sight of the principles governing the relationship between mens rea and mistake of fact principles which were also explained and approved in Pappajohn. Finally, in light of these "principles" and the functional division between judge and jury, the article suggests that we re-examine the evidentiary question of when the defence should be left to the trier of fact.