On Tuesday, October 16, 2018, the Women’s Legal Education and Action Fund (LEAF) will appear before the Supreme Court of Canada (SCC) to intervene in the Crown’s appeal of the Court Martial Appeal Court’s decision in R v Gagnon.

LEAF’s Legal Director, Shaun O’Brien, will be joined by pro bono counsel, Kelly McMillan of Nijhawan McMillan Barristers, to provide the Court with a feminist, equality-focused analysis of the defence of “honest but mistaken belief” in consent.

The case concerns a senior military official who is accused of sexually assaulting a colleague. The accused has argued that he believed his colleague was consenting because she was silent, opened her mouth (as if to receive a kiss), and moved her hips slightly. The complainant has testified that she was not asked whether she wanted to engage in any sexual activity, and after she told the accused she did not want to proceed, he digitally penetrated her and attempted intercourse.

As has happened in this case, the Crown may prove that a complainant did not consent, but the accused can avoid conviction for sexual assault if he is able to demonstrate an honest but mistaken belief the complainant was consenting. However, the Criminal Code specifies that anyone relying on this defence needs to have taken reasonable steps to ensure consent.

LEAF will argue for an interpretation of this requirement that requires the accused to take active steps to obtain consent. We believe this will recognize women’s substantive equality and acknowledge the myths and stereotypes and power imbalances that influence the dynamics of consent. For example, the accused should not consider silence as consent, and agreement to one sexual act should not be regarded as agreement to any other sexual acts. Moreover, our courts should not ignore how relationships and environments—such as the hierarchical structure of the military—may create barriers to a woman’s objections to unwanted sexual contact.

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.

For media inquiries, please contact:

Shaun O’Brien, Legal Director, Women’s Legal Education and Action Fund
E: [email protected]
C: 416.317.4440
P: 416.595.7170