‘No’ cannot mean ‘yes,’ Alberta judge insists
Appeal court ruling overturns sexual assault acquittal on firm definition of consent
Alberta Justice Juliana Topolniski has zero patience for judges who think the concept of consent in the legal system is unclear.
“It is long beyond debate that in Canada ‘no’ means ‘no,’ ” Topolniski ruled after overturning a lower court’s decision on appeal to acquit a teen on a sexual assault charge.
“Acquiescence or ambiguous conduct do not equate to consent.”
In April, youth court judge Michael Savaryn found a teenage boy not guilty of sexual assault because the victim, a 15-year-old classmate of the accused, was “unclear” and “at best, ambiguous” about her desires, at times smiling and laughing off the actions of the accused.
Both the names of the victim and the accused have been withheld because of a publication ban due to their ages.
“. . . In fairness to the accused, the complainant tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort. . . . I am not convinced she clearly expressed her objections,” Savaryn ruled in April, according to facts cited by Topolniski.
But video footage played in court showed the complainant repeatedly saying “no” and fending off her attacker with a water bottle. There was nothing ambiguous about this behaviour, Topolniski later ruled in her searing takedown of Savaryn’s legal reasoning.
“Consent means ‘yes.’ 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. Even if the situation was, as the trial judge found, ‘at best ambiguous,’ that is not ‘yes,’ ” Topolniski wrote.
The incident occurred in October during an after-school workout at an Edmonton high school, according to facts cited in Topolniski’s ruling.
The accused approached the victim and asked if she was in a relationship, commenting, “That ass, though!” when he walked by her.
“The complainant found the comment to be disrespectful, but thinks she laughed it off because she was not expecting it,” Topolniski recounted in her ruling.
Later, as the victim was getting ready to leave, the accused told the victim that she was “sexy and fit” and grabbed or touched her buttocks several times. According to evidence submitted in court, the victim felt uncomfortable, but laughed it off.
A video recording of the incident shows her smiling and giggling at his initial advances.
But when the accused pushed the victim into a locker, grabbed her buttocks, ran his hands over her body and tried to kiss her, she said she felt “really unsure.”
The victim walked away and told the accused not to follow her. In- stead, he pushed her into a closed doorway, grabbed her buttocks and breasts and tried to kiss her again.
She tried to push him away and fend him off with her water bottle.
The accused said she should “just let him do it,” according to the evidence cited by Topolniski.
The victim said “no” and “it wasn’t right.” This time, she wasn’t laughing. After she was finally able to leave the building, the accused followed her outside and asked for a hug. She said “no” and began to walk away. The accused came back, grabbed her and hugged her.
Not only did Justice Savaryn find her behaviour ambiguous, he took issue with how she behaved after the incident — when she texted a friend about what happened, she used a crying smiley-face emoticon and the acronym “LMAO” (laughing my ass off ) — saying this behaviour was inconsistent with “her having been serious or clear in her objections.”
The victim told the court she was worried her friend would start a fight with the accused if she said how upset she was.
On this point, Topolniski let it be known that she and Savaryn were in total disagreement, writing that “the requirement that a complainant raise the hue and cry has long since passed into the mists of time.”
“The trial judge’s consideration on the complainant’s post-incident conduct is indicative of sexual stereotyping about how victims of sexual assault will behave,” she said.
Topolniski’s statement echoes the sentiments of Ontario Court Justice Marvin Zuker, who found York University student Mustafa Ururyar guilty of sexually assaulting fellow PhD student Mandi Gray last week.
“The myths of rape should be dispelled once and for all,” he said in his verdict.
Amanda Dale, executive director of Toronto’s Barbra Schlifer Commemorative Clinic, which provides legal support and counselling to women who have experienced violence, called the ruling “refreshingly accurate.”
She said both rulings should be celebrated, but there is still a long way to go before victims of sexual assault will be fairly treated by the courts.