Mr. Hay and the complainant met online and had been dating for approximately one month before the alleged sexual assault, involving unconsensual anal intercourse occured. At the trial, Mr. Hay was allowed under s 276 of the Criminal Code to admit evidence that during a previous consensual sexual encounter with the complainant, she encouraged him to digitally penetrate her anus.

Following a judge-alone trial Mr. Hay was acquitted of the charge. Mr. Hay conceded that the complainant did not consent to the anal intercourse on the day in question, but successfully argued that he had an honest but mistaken belief in the complainant’s communicated consent. The trial judge concluded that the Crown had failed to prove the necessary mens rea.

The Crown appealed Mr Hay’s acquittal, and the Court of Appeal of Alberta unanimously allowed the appeal, quashed the acquittal and entered a conviction for sexual assault. It found the trial judge erred in law both by admitting the evidence of the previous sexual encounter and consequently by finding that there was an air of reality to the defence of honest but mistaken belief in communicated consent.

Mr. Hay is appealing now to the Supreme Court of Canada as of right.