Alberta Queen’s Bench justice overturns sexual assault acquittal of 15-year-old

EDMONTON The acquittal of a 15-year-old boy accused of sexually assaulting a 15-year-old girl has been overturned by an Edmonton Court’s Bench justice who said the provincial youth court judge in the trial used “myths and stereotypes about sexual assault victims” to inform his decision.

“Consent in the context of sexual activity is not a difficult concept. It means just what the word implies,” wrote Court of Queen’s Bench Justice Juliana Topolniski in her seven-page ruling, which offered scathing criticism of Judge Michael Savaryn’s misapplication of the law.

A youth, whose identity is subject to a publication ban, was caught on camera making advances to a 15-year-old female he did not know but who went to his high school.

The incident began with the accused asking her if she was involved with another boy. About 10 minutes later he made crass remarks, which she said she found “disrespectful” but laughed off, having been caught off-guard by them.

Soon after it escalated to him pushing her into a locker, grabbing her buttocks, running his hands over her body and trying to kiss her.

The girl, whose identity is also banned from publication, tried to walk away. The accused followed and another interaction, which was not caught on camera, involved more grabbing of her buttocks and breasts. She pushed him away, fending him off with a water bottle, and said “No” and “It wasn’t right.”

In the initial court ruling in April, Savaryn said the “accused did not mean to touch the complainant sexually without her consent and nor was he reckless or wilfully blind to her lack of consent.

“I do not believe she was successful communicating her discomfort which initially I find was totally internalized,” he said. “I am not convinced she clearly expressed her objections.”

Topolniski said even if consent had been given at first — which she did not think was the case — “it is clear that any such consent was withdrawn.”

“Consent means ‘Yes,’ ” she wrote in a ruling she handed down orally July 14 in Edmonton. “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.”

Savaryn said the young girl’s actions, which included laughing off the initial interaction and later exchanging texts with a friend that had emojis suggesting she was “laughing her ass off,” suggested inconsistency with a clear lack of consent.

“There is no place for sexual stereotyping in sexual assault cases and no inference should be drawn about a complainant’s credibility on how a victim of sexual assault is to react to the trauma,” she wrote.

Topolniski said assumptions should not be made about the complainant’s post-incident conduct, whether the person attempts to walk away from an attacker or call for help during an incident, appears upset to others or communicates, in Savaryn’s words, “any serious objection clearly to the accused.”

“Silence, passivity or ambiguous conduct does not constitute consent,” she wrote. “The respondent did the opposite of what the defence required of him — he persisted in the face of objection.”

“The requirement that a complainant raise the hue and cry has long since passed into the mists of time,” she added. The acquittal was overturned and a conviction entered. The case will return to youth court for sentencing.

I am not convinced she clearly expressed her objections.