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Criminal Code offences - Offences against person and reputation - Assaults - Sexual assault - Consent - Honest but mistaken belief

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the Crown from a Youth Court decision acquitting the accused, JR, of sexual assault. The accused and the complainant, age 15, were high school students with no prior interactions. The accused approached the complainant during a workout and asked her if she was involved with another boy. He subsequently made a comment regarding her body. On their way out of the school, the accused complimented the complainant about her body and slapped her buttocks several times. The complainant felt uncomfortable and laughed off the accused’s conduct. The accused pushed the complainant into a locker, ran his hands over her body, and attempted to kiss her. The complainant moved out of the way and asked the accused to leave. The accused persisted, pushing the complainant into a closed doorway, grabbing her buttocks and breasts, and trying to kiss her. The accused told her to acquiesce and the complainant verbally refused. They left the school and the accused asked for a hug. The complainant declined and the accused hugged her anyway. At trial, the Youth Court judge rejected much of the complainant’s testimony on the issue of consent, finding her actions before, during and after the incident were inconsistent with non-consensual touching. The judge concluded the Crown failed to establish the requisite intent. The Crown appealed.

HELD: Appeal allowed. The trial judge erred by assessing the evidence with resort to prohibited stereotypical reasoning and misapplying the law of consent, including the defence of mistaken belief in consent. The finding that the complainant’s post-incident demeanour and text messages to her friend were inconsistent with communicating serious objections to the accused did not accord with the law of consent. The complainant’s physical attempt to fend off the accused and utterance of the word “no” was inconsistent with a finding of consent. Her state of mind following the incident was irrelevant to the issue. The findings regarding the complainant’s demeanour and conduct resulted from use of impermissible sexual stereotyping regarding victim behaviour. The errors affected the outcome of the case. The evidence amply supported an absence of consent to the sexual touching. There was no air of reality to the defence of mistaken belief in consent. The acquittal was overturned and a conviction was entered.