An Alberta judge has overruled the acquittal of a teenage boy on sexual assault charges, and given a lower court judge a blistering lesson on consent.
Madam Justice J.E. Topolniski of the Court of Queen’s Bench excoriated Provincial Court Judge Michael Savaryn in her appeal ruling, stating that he erred in interpreting and applying the law of consent, which she called “not a difficult concept.”
The boy in question approached the girl -- a stranger -- at her high school. He told her she was “sexy and fit” and then “touched or slapped her buttocks several times,” before pushing her into a locker, grabbing her buttocks again, running his hands across her body and trying to kiss her, according to the ruling.
“With the intention of getting away from him, the complainant quickly moved out of the way,” according to the ruling.
“He followed her, pushed her into a closed doorway, and again grabbed her buttocks and breasts and tried to kiss her as she tried to push him away and fend him off with a water bottle.”
The boy said she should “just let him do it,” to which the girl said “no,” the ruling goes on.
Some of the incident was captured on security cameras.
The girl sent a text message to a friend the evening of the incident telling him what happened. She included a smiley-face emoji with tears coming from its eyes, which means “laughing my ass off.”
The girl testified that she was not initially sure how she felt about what had transpired, although she denied finding it funny.
Judge Savaryn wrote that “the complainant tried so hard to laugh it all off, that I do not believe she was successful in communicating her discomfort … I am not convinced she clearly expressed her objections.”
The judge also suggested that it might have been consensual because she could be seen smiling “genuinely” for at least five seconds, had not avoided taking the same path as the boy and did not call for help from a janitor.
Madam Justice Topolniski listed several reasons in her ruling about how Savaryn misinterpreted the law around consent.
“Consent means “Yes,” she wrote. “The word “No” does not mean “Yes.” The word “No” coupled with fending off an attacker with a water bottle does not mean “Yes.” There is nothing ambiguous about it.”
Topolniski added that “the complainant’s state of mind after the incident is irrelevant to the question of consent.”
“Indeed, the trial judge’s consideration of the complainant’s post-incident conduct is indicative of sexual stereotype about how victims of sexual assault will behave,” she went on.
“The requirement that a complainant raise the hue and cry has long since passed into the mists of time,” she added.
Justice Topolniski also explained that there is also no such thing as “implied consent.”
She wrote that even if the judge had been correct that consent was initially given (and she does not think that was the case) then “it is clear that any such consent was withdrawn.”
Topolniski also wrote that although there is such thing as “mistaken belief” in consent, “an accused must have taken reasonable steps … to ascertain that the complainant was consenting.”
Topolniski convicted the boy of sexual assault. Neither he nor the victim can be named due to the Youth Criminal Justice Act.
Mount Royal University Justice Professor Scharie Tavcer called Topolniski’s ruling “excellent.”
“She was very clear, elaborating and clarifying the law and absolutely making it clear to victims and victims’ families that consent is an easy thing to comprehend.”
Tavcer said the lower court judges’ ruling displayed ignorance that is too common in Canadian society.
“Our society puts the onus on sexual assault victims, particularly women, girls … to justify their responses, their behaviours,” she said.
“He is not following the law but rather his bias that’s embedded in society of victim blaming and shaming,” she added.
Tavcer said that the ruling – one of several similar rulings she’s seen -- suggests more training may be needed for judges.
She pointed to the similarities with the case of Alberta judge Robin Camp, who acquitted a man of sexually assaulting a 19-year-old woman.
Camp had questioned the woman's morals, suggested attempts to fight off the attacker were feeble, said that “pain and sex sometimes go together” and asked the woman at one point, "Why couldn't you just keep your knees together?"
Camp was later appointed to the Federal Court but stopped hearing cases after an uproar over the 2014 sexual assault acquittal.
With files from The Canadian Press
