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A new trial has been ordered for an Ottawa man who won acquittal on sex assault charges based on his honest belief that he could have intercourse with his wife any time.

The Court of Appeal for Ontario said the judge in the case committed a series of errors.

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Ontario’s highest court said the husband, identified only as Mr. E., should not have been acquitted of sexual assault based on the belief — shared with his wife — that he could have sex with her whenever he wanted. Among other things, the court said, it was not the defence he presented.

“This was a credibility case in which Mr. E did not raise the honest, but mistaken belief in consent defence during the trial, and it should not have been considered,” the appeal court ruled.

What’s more, the court said, to avoid conviction based on an honest, but mistaken belief in consent, an accused person’s viewpoint must be grounded in a fact scenario that could give rise to lawful consent. That didn’t exist in the case of Mr. E.