A man who had sex with his identical twin's occasional lover in a dark bedroom was reckless and "willfully blind" because he did not take the necessary steps to make his identity clear to the woman, the Ontario Court of Appeal has ruled.
On Friday, the three-judge panel dismissed an appeal from the man, who was found guilty of sexual assault in 2008 by an Ontario Superior Court judge and sentenced to six months in prison.
In the appeal, the man argued the woman had given consent to sex despite her mistake about the identity of her partner. Even if the absence of consent was established, he said he had an honest but mistaken belief she had given consent. He also argued the judge held him to an unusually high standard about whether he had taken reasonable steps to determine the woman had consented to sex.
The woman was at a party hosted by a friend in the fall of 2006 when she said she felt tired after drinking three-quarters of a bottle of wine. She went to sleep in the bed of her friend, with whom she had a sexual relationship.
Her friend's twin brother, the accused, also had several drinks and slipped into the same bed after he said he too eventually became tired.
So when he cuddled up next to her, the woman said she thought it was her occasional lover.
The accused testified that he asked "Are you sure?" before they had sex, and she was the first to touch him. But she said it was the accused who woke her when he began petting her. She also testified she called him by his twin brother's name about a dozen times before he penetrated her.
They engaged in intercourse until "little light bulbs" went off in her head, she said.
The woman's consent depended on the sex being with her friend, Mr. Justice Stephen Goudge of the Ontario Court of Appeal wrote in the decision, on behalf of Mr. Justice David Doherty and Mr. Justice John Laskin. Her mistake did not mean she voluntarily agreed to sex with someone else, they said.
"It is hardly surprising that, from the complainant's perspective that night, the identity of her sexual partner was an inseparable component of any consent to sexual activity," Judge Goudge wrote.
The appellate court said the man did not take the reasonable steps to obtain consent. The dark bedroom, no previous relationship with the woman and the fact she had gone to sleep in his twin brother's bed all meant he should have done more than he did to make his identity clear to the woman, the decision said.