The threshold for leaving a s 24 defence of honest and reasonable mistake as to consent to the jury is whether the evidence from any source, viewed fairly, discloses a reasonable possibility that the defendant might have had such a mistaken belief — formulated by reference to the Crown's onus (whether the jury could legitimately entertain a reasonable doubt). The preferred formulation is that of McMurdo JA in Makary, not Sofronoff P's requirement for evidence of actual subjective belief. The enquiry is uniform regardless of whether the defendant testifies. In cases involving intoxicated complainants, the jury may take a 'moderated view' of the evidence of both parties, and such an intermediate version of events may provide the evidentiary foundation for the defence.
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