What is the standard of conduct of a defence in a sexual assault case?

“Except in rare case where it would be needless to do so”, the presiding judge must review the substantial parts of the evidence and give the theory of the defence to the jury. “The pivotal questions upon which the defence stands must be clearly presented to the jury’s mind.” per Taschereau, J. at 98-9 in Azoulav v. The Queen (1952), 1952 CanLII 4 (SCC), 104 C.C.C. 97 (S.C.C.). Although this is clearly the best practice, it is not an invariable rule. We encourage trial judges to follow this practice (as many do). When appropriate, trial judges should also consider having the written submissions of counsel (concerning their theories with brief reference to the pertinent facts) marked as exhibits and given to the jury, or, at the least, marked as lettered exhibits so they will be available as part of the record on an appeal.