According to the women, whose name cannot be revealed for legal reasons, she was a friend of the accused man's twin. This friendship also included occasional sex. The incident took place in the fall of 2006, when she dropped by her pal's place while a few people had gathered there for a party. In the evening, she drank three-quarters of a bottle of wine. When the woman got tired she went to sleep in her friend's bedroom.
The accused, who had also been drinking, said even he felt sleepy and his brother directed him to his bedroom.
The accused alleged that the woman started the petting and he asked her, "Are you sure?" before they had sex.
But the women said the accused had woken her up as he began touching her. She also claimed to have called him by his brother's name quite a few times before they had intercourse.
In its factum before the Court of Appeal, the Crown said the accused either acted irresponsibly or was wilfully ignoring the consequences of his acts.
The Crown filing said the accused went into his twin's darkened bedroom and in "a bed she had often shared with his brother," spoke little as he had intercourse with a drunk woman.
"Anyone, but especially ... the identical twin of the man the woman in bed is having a sexual relationship with, would be cognizant of the obvious risk of being confused for her intimate partner in this situation. To forge ahead anyway is reckless," the Globe and mail quoted the Crown filing, as saying.
After a trial in 2008, an Ontario Superior Court found the accused guilty and sentenced him to six months in prison. The judge said the man should have done more to reveal his identity but he "chose to play it as close to the line as possible in an attempt to ensure that sex, in fact, would take place."
But the defence said that the judge placed an unreasonably high onus on the man. The defence's factum said: "He believed that the complainant knew who he was."
According to the defence filing, the bedroom was dark but some light still seeped in through the partly open door. The defence also said there were noticeable physical differences between the twins, one being slimmer than the other, for instance.
The woman testified that "little light bulbs" went off in her head as she felt those differences but she could not see anything clearly in the dark.
She also said had always felt uneasy around her friend's twin brother. The accused, however, said had flirted with him. (ANI)