Edmonton sex assault case puts spotlight on consent for teens and courts

With the concept of consent absent from Alberta's sexual health curriculum, the vast majority of teenagers have never heard of the topic unless teachers make the initiative to introduce it, says one youth educator in Edmonton.

"Anecdotally, 90 per cent of the time when we're speaking to youth, (consent) is a brand new topic — which is particularly troubling because we know they're already having relationships," said Nikki Bernier, director of community engagement for the Sexual Assault Centre of Edmonton.

Part of SACE's work is to make presentations on sexual assault in junior and senior high schools across the city — but the work is at the request of teachers and administration.

"The challenge is we can reach out to schools that we're not in contact with, but we do require an invitation to come, so there's lots of people who are not getting that information," Bernier said in an interview Wednesday.

The topic of consent among teenagers became headline news this week after a Court of Queen's Bench justice overturned a lower court judge's decision to acquit a teenage boy of sexual assault.

Provincial court Judge Michael Savaryn found a 15-year-old boy not guilty of sexual assault after he groped, slapped and tried to hug and kiss another student at school. At one point in the encounter, the boy pushed the girl into a locker. The girl walked quickly away after the boy groped her. At another point, she also tried to push the boy away and fend him off with a water bottle.

There was partial video footage of the incident. At the beginning of the encounter, the girl was smiling.

In his April judgment, Savaryn said the victim "tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort … even at the end, I am not convinced she clearly expressed her objections."

More than 'No Means no'

In her school presentations, Bernier talks about the definition of consent within the context of Canadian law.

"The anti-sexual assault slogan of the '80s was 'No means no,'" said Bernier. "That's true but there's so much more to the story because lots and lots of other things can mean no. Freezing up or pulling away or giving excuses, withdrawing consent if someone is changing their mind, someone being under the influence of drugs or alcohol."

Canadian consent law is "affirmative," Bernier said, with the onus on the person initiating contact to ensure their partner is saying "yes" with enthusiasm and voluntarily. Educators also talk to students about situations where people are drinking, if people are underage, or if verbal cues are unclear.

"(Teenagers) are so open to it, there's hardly any ever resistance," Bernier said. "I'm always surprised by how open and willing youth are to have those conversations, if they're given the opportunity."

In the Edmonton court case, Savaryn's ruling was overturned last week by Court of Queen's Bench Justice Juliana Topolniski. In her judgment, Topolniski said the evidence "amply supports an absence of consent to the sexual touching."

Consent laws on the books since the 1990s

It's not the first time an Alberta lower-court judge has been in the spotlight over his interpretation of sexual assault law. In 2014, then-provincial court Judge Robin Camp asked a female complainant in a rape trial, "Why couldn't you just keep your knees together?" and "Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?"

The Alberta Court of Appeal overturned Camp's decision to acquit the defendant, writing that the judge's comments gave rise to doubts about his understanding of the law governing sexual assault.

Lise Gotell, a gender studies professor at the University of Alberta, noted there is no mandatory judicial education on sexual assault.

"This is perhaps something we should be thinking of implementing," she told Edmonton AM on Wednesday.

She noted that consent law in Canada reflects changes made to the Criminal Code in 1992, and there have been a string of Supreme Court decisions that have added to the case law in the years since.