What is the test for a defence in a sexual assault case?
British Columbia, Canada
The following excerpt is from R. v. Bou-Saleh, 2014 BCSC 1099 (CanLII):
The trial judge must assume that the evidence provided in support of the defence is true in determining whether the defence may be considered. At this stage, the trial judge should not assess credibility, make findings of fact, or draw factual inferences: R v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29 at paras. 53-54. The trial judge may perform only a limited, common sense weighing of the evidence in assessing whether the defence has an air of reality: R v. Larose, 2013 BCCA 12 at paras. 27-28.
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