When the case of a military man acquitted of sexually assaulting his more junior colleague goes before the Supreme Court of Canada, the Women’s Legal Education and Action Fund (LEAF) will have a chance to weigh in on an issue many people still struggle to understand: consent.
Canada’s top court granted LEAF intervener status in the case of Canadian Forces warrant officer André Gagnon, who was charged with sexually assaulting a subordinate at an armoury near Quebec City in 2011.
Gagnon was acquitted in 2014 by an all-male court-martial, but earlier this year, the Court Martial Appeal Court ordered a new trial on the basis that the chief military judge made a mistake in putting forth the defence of honest but mistaken belief in consent. That decision, which included one dissent, is now before the Supreme Court.
“The problem with that defence is that the way society and accused people, in some cases, view consent is infused with myths and stereotypes,” says LEAF’s legal director Shaun O’Brien. “If she doesn’t say anything, that’s consenting. If she consents to a kiss, she’s consenting to everything that follows the kiss, and so on.”
LEAF will have five minutes and five pages to weigh in. It’s welcome news to women’s rights advocates at a time when Canadians seem increasingly confused about what constitutes consent.
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“To lay out in very, very simple, plain language, in ways that it’s going to be difficult for you to not understand after, I think that’s what I’m excited about,” says Nneka MacGregor, executive director of Women at the Centre.
Gagnon said it was Stephanie Raymond who made the first advances after a holiday party in December 2011. While Raymond, who insisted her name not be protected by a publication ban, said it was Gagnon who initiated and attempted to get oral sex. She initially went along with his actions, she said, because she worried about facing reprisals later (Raymond was discharged after filing a complaint). Gagnon, however, said she only raised objections when he tried to penetrate her at which point he stopped.
But the defence of honest but mistaken belief in consent is only allowed “if the accused took reasonable steps, under the circumstances, to ascertain consent for each sexual act,” wrote judge Johanne Trudel in her decision to overturn the not guilty verdict.
“By his own admission, the respondent did not take any step to ascertain the complainant’s consent to be undressed, touched, and kissed in the genital area, and penetrated without a condom,” Trudel wrote. “The respondent’s reliance on the complainant’s silence and her implied consent must be rejected as a defence.”
However, Chief Justice B. Richard Bell, who dissented, said it wasn’t wrong for the chief military judge to put the defence forward as an option.
“I am of the opinion that the respondent did not fail to take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant had affirmatively communicated, by words or conduct, her consent,” he wrote.
Clarity would be welcome, says Paulette Senior, president of the Canadian Women’s Foundation, and not just for courts still struggling with the “blurring of old-fashioned notions of what consent is.”
The foundation released a study in May showing Canadian’s understanding of consent has actually dropped in recent years. While a third of those surveyed in 2015 said they understood what it means to give consent, just 28 per cent surveyed in 2018 felt equally equipped.
“We’re now living in a time when, on a national level, Canadians are saying, ‘We don’t know enough and we want to know more,’” Senior says.
Having these conversations before the Supreme Court matters, says Constance Backhouse, a law professor at the University of Ottawa.
“The Supreme Court is sitting on a foundation of previous decisions and laws that, I think, were heavily laced with bizarre notions about women and sexuality and consent,” she says.
For decades, Backhouse says, it’s been one struggle then another. Advocates have fought widespread misconceptions about sexual assault in a bid to change the laws and, even after changing them, have had to fight to make sure that they’re been interpreted well by the courts.
“The majority of opinion is that the criminal justice system is not working well on sexual assault. We need to think about that. Why is that?”
— with files from The Canadian Press