[1] The Crown appeals the acquittal of Jordan Bilinski, by jury, of sexual assault contrary to s 271 of the Criminal Code, RSC 1985, c C-46. The appeal is on points of law alone, as directed in s 676(1)(a) of the Code.

[2] The points of law relate to the jury instruction on mens rea, the guilty mind requirement necessary to secure a criminal conviction, for the offence of sexual assault, and proof an accused knew that a complainant did not communicate consent to a sexual act where honest but mistaken belief in communicated consent is not available.

[3] The trial judge relied on the pattern jury instructions from the Canadian Judicial Council. Pattern jury instructions continue to be a valuable resource for trial judges tasked with crafting jury instructions tailored to the specific facts and issues in the case before them, often in the context of significant time and resource constraints. Unfortunately, in this case that reliance resulted in jury instructions that were legally insufficient. While the panel agrees that the jury charge contained errors of law, we do not agree on whether those errors are sufficiently serious to warrant granting the Crown’s appeal. The majority grants the appeal. The minority would dismiss the appeal. We provide separate sets of reasons on this below.

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