On Thursday, May 23, 2018, LEAF filed a motion to seek leave to intervene in the Crown’s appeal before the Supreme Court of Canada (SCC) of the Court Martial Appeal Court’s decision in the case of R v Gagnon. 

In this case, LEAF is concerned with the Court’s interpretation of the defence of honest but mistaken belief in consent. This defence allows a person accused of sexual assault to argue that, even if a complainant did not consent to sexual touching, the accused did not intentionally commit the offence of sexual assault because he had an honest but mistaken believe that she consented.

LEAF proposes to advance an equality-enhancing definition of the defence and in particular one which advances women’s right to sexual autonomy and bodily integrity. LEAF is particularly concerned with giving robust meaning to the requirement that the accused take reasonable steps to ascertain consent before being able to rely on this defence.

The Case

In this case, a senior military official was accused of sexually assaulting his junior colleague. The accused argued that he believed that the complainant was consenting. The evidence he relied on to support his belief in consent included passive or ambiguous conduct on the part of the complainant, including silence, apparently opening her mouth as if to receive a kiss, and moving her hips slightly as if to enable the accused to remove her pants. The complainant testified that she advised the accused that she did not want to go any further, and the accused nonetheless proceeded to digitally penetrate her and attempt intercourse. At no point did the accused ask the complainant if she wanted to engage in sexual activity.

LEAF’s Proposed Intervention

If granted leave to intervene, LEAF will argue that the defence of honest but mistaken belief in consent should be interpreted in a manner that is consistent with women’s substantive equality, free from discriminatory myths and stereotypes and consistent with the voluntary standard of consent.

Where the Crown has proven that the complainant did not consent, the accused can avoid conviction if he is able to prove that he honestly believed the complainant was consenting. However, pursuant to section 273.2(b) of the Criminal Code, in order to rely on this defence, the accused must have taken reasonable steps to ascertain consent.

This provision is very important for women’s equality, as it ensures that an accused is not permitted to rely on generalized assumptions or stereotypes regarding consent in place of taking such steps, for example that women say no when they really mean yes, that silence or passivity implies consent, or that agreeing to one sexual act implies agreement to any sexual act.

LEAF proposes to argue for a robust interpretation of this provision. LEAF’s argument is that, before raising the defence of mistaken belief, the accused must have taken active steps to ascertain consent. It is not sufficient for the accused to assert that he inferred consent from the circumstances of the sexual activity, or from ambiguous or passive conduct on the part of the complainant.

The accused also cannot be allowed to rely on apparent consent to one form of sexual activity to support his belief that he received consent to a new sexual activity. The voluntary and affirmative standard of consent, affirmed by the SCC, requires that consent be communicated by words or conduct to each sexual act.  In order to rely on the defence of honest but mistaken belief in consent, the accused has a specific obligation to take reasonable steps to ensure that the complainant consents to any change in sexual activity. Consent to a kiss does not mean consent to digital penetration.

Finally, LEAF is concerned with the impact of power imbalances on the dynamics of consent. A hierarchical working environment that prioritizes obedience and conformity may seriously interfere with a woman’s ability to express her objection to an unwanted sexual act. LEAF intends to argue that these power dynamics must be taken into account in considering the active steps an accused is required to take to ensure he has obtained consent.

The Court Martial Appeal Court judgment is available here.

LEAF is grateful to the pro bono counsel of Nasha Nijhawan and Kelly McMillan of Nijhawan McMillan Barristers, alongside LEAF Legal Director Shaun O’Brien.

About Women’s Legal Education and Action Fund (LEAF)

Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has used litigation, law reform and public education to work toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit www.leaf.ca.

For media inquiries, please contact:

Shaun O’Brien, LEAF Legal Director
416.595.7170 x 223
[email protected]