'No means no': Judge delivers blistering rebuke of lower court sex-assault decision

[Tennis]

An Alberta Court of Queen's Bench justice has overturned a teen's acquittal on a sexual assault charge and delivered a blistering rebuke of a lower court judge she said did not understand the law.

In a seven-page ruling, Justice Juliana Topolniski used a series of scorching short sentences to explain that the issue of consent is "not a difficult concept."

"It is long beyond debate that, in Canada, no means no," Topolniski wrote. "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."
Acquittal in sex-assault case

In April, provincial court judge Michael Savaryn found a 15-year-old boy not guilty of sexually assaulting a 15-year old girl. The names of both the accused and the complainant are covered by a publication ban.

Topolniski overturned the acquittal and convicted the teen. She not only ordered the boy back to provincial court for sentencing, she asked the court to ensure that Savaryn is not the judge who will ultimately sentence the teen.

A sentencing date for the boy, now 16, will be set Aug. 25.

On a Tuesday afternoon last October, students at an Edmonton high school had just wrapped up an after-class workout. About 10 to 15 minutes later, the boy walked by the girl's locker and made a comment about her anatomy, according to the facts laid out in Topolniski's decision.

The girl told the court she found the comment "disrespectful," but laughed it off because "she was not expecting it."

As the girl was on her way out of school, the boy approached her again. He told her "that she was sexy and fit, and touched or slapped her buttocks several times."

Incident captured on video

The interaction was captured on a video entered as an exhibit at trial and watched by the judge. It showed the girl smiling and giggling. The boy then pushed the girl into a locker, grabbed again at her buttocks, ran his hands over her body and tried to kiss her. She quickly moved away and told him to leave.

The two moved out of camera range. The boy ignored the girl's demand and followed her, then pushed her into a closed doorway, Topolniski wrote. For a third time he grabbed her buttocks, then her breasts, and tried to kiss her as she tried to push him away and fend him off with a water bottle.

The boy said she should "just let him do it."

She said no and told him it wasn't right. The girl wasn't laughing anymore. She got away from the boy and left the school. But he approached her one last time outside school to ask for a hug. She said no and walked away, but he came back, grabbed her and hugged her.
Upset, uncomfortable, disrespected

The girl said she was upset, uncomfortable and felt disrespected. But later that night she texted a male friend about what had happened and attached a smiley face with tears and tried to make light of the incident. She testified that she thought if she had told her friend how upset she was, he would likely have tried to hurt her attacker.

The trial judge decided the girl's actions did not match her words.

Savaryn decided the victim appeared to be "complacent" because she didn't seem to be upset about the boy's advances or try to fend them off until the doorway incident, even though she said no twice at the locker and in the doorway.

The trial judge found the girl "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."

http://www.cbc.ca/news/canada/edmont...sion-1.3694814

People need to wise up about consent. It's pretty clear cut as to what it is.
If she says no it means stop.

[the game]

http://www.cbc.ca/news/canada/edmont...sion-1.3694814

People need to wise up about consent. It's pretty clear cut as to what it is.
If she says no it means stop.

What if he says no?

[Sunseeker]

What if he says no?

Some sexual humor is funny. This wasn't.

[the game]

Some sexual humor is funny. This wasn't.

Asking op what his stance is on men being raped is a joke?

[May90]

Guess the boy was a slow thinker.

[Mister Cheese]

This is clear cut where she said no. The guy here was a fucking moron and didn't know when to stop obviously. Why are you making this out to be a bigger deal than it is?

[Kapadons]

Does Canada not have double jeopardy laws and does this not fall into it? Being "tried" for the same crime twice? And why did it even move to a higher court? Did a prosecutor just say " I don't like what that judge said" and issue an appeal to a higher court? I wasn't aware this was a possibility in a criminal case.

[Masark]

Does Canada not have double jeopardy laws and does this not fall into it? Being "tried" for the same crime twice? And why did it even move to a higher court? Did a prosecutor just say " I don't like what that judge said" and issue an appeal to a higher court? I wasn't aware this was a possibility in a criminal case.

Yes we have a double jeopardy law (section 11(h) of the Charter), but unlike in the USA, acquittals can be appealed by the Crown and if the original trial judge and/or jury erred in their interpretation of the law (as happened in this case, by not following the standards set in a previous Supreme Court decision), that trial can be tossed out and a new trial ordered. For the purposes of double jeopardy, the original trial essentially never happened.

This is clear cut where she said no. The guy here was a fucking moron and didn't know when to stop obviously. Why are you making this out to be a bigger deal than it is?

Because he was incorrectly acquitted in the original trial, and in the USA, that would have been the end of things with no possible recourse for the victim.

[Flurryfang]

Hopefully she does not give him too huge of a judgement. He just seems like a guy, who don't know sexsual borders and a tough voice/hand will proberly straighten him out. I know some kids, who at that age, was quite confused about how to act around girls and some, who had a bit of an ego, would sometimes be a bit too aggresive against some girls. These guys did not become rapists, but did just have no experience, when communicating and handling girls. Few years later, these guys got normal relationships and are normal today.

But this is Canada, so they are proberly gonna do something horrible to this kid, was overdoing it when it comes to his punishment.

[Evil Midnight Bomber]

Does Canada not have double jeopardy laws and does this not fall into it? Being "tried" for the same crime twice? And why did it even move to a higher court? Did a prosecutor just say " I don't like what that judge said" and issue an appeal to a higher court? I wasn't aware this was a possibility in a criminal case.

Considering the video evidence...there was more than enough grounds for an appeal or, to be more accurate, a review of the judge's decision.

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Hopefully she does not give him too huge of a judgement. He just seems like a guy, who don't know sexsual borders and a tough voice/hand will proberly straighten him out. I know some kids, who at that age, was quite confused about how to act around girls and some, who had a bit of an ego, would sometimes be a bit too aggresive against some girls. These guys did not become rapists, but did just have no experience, when communicating and handling girls. Few years later, these guys got normal relationships and are normal today.

But this is Canada, so they are proberly gonna do something horrible to this kid, was overdoing it when it comes to his punishment.

So, you're going to go with a "boys will be boys" argument?

[Flurryfang]

Considering the video evidence...there was more than enough grounds for an appeal or, to be more accurate, a review of the judge's decision.

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So, you're going to go with a "boys will be boys" argument?

Yes, that is the argument i will go for. Children, or specific young people in puperty are in a constant confusion when it comes to sex, feelings and social interaction with both sides of gender. This confusion can lead to overaggresion, but it is often not meant in any harmful way. It is just, that nobody have told or shown how these kids are to interact. So they try things out. Some people try to extremly nice, some try to shine with a huge ego and some try to be the aggreser, being the one to always take the "first step". This is not saying, that this kid does not deserve a punishment, he clearly does, but there is no need to look at his action and see him as a future rapist. He is just a teenager doing what he thinks will get him girls. All he needs is somebody clearly saying, that such behavier is not accepted and is especially not how you get girls. There is no need for jail or sexsual predator lists, just a firm hand and some clear clarification.

[Evil Midnight Bomber]

Yes, that is the argument i will go for. Children, or specific young people in puperty are in a constant confusion when it comes to sex, feelings and social interaction with both sides of gender. This confusion can lead to overaggresion, but it is often not meant in any harmful way. It is just, that nobody have told or shown how these kids are to interact. So they try things out. Some people try to extremly nice, some try to shine with a huge ego and some try to be the aggreser, being the one to always take the "first step". This is not saying, that this kid does not deserve a punishment, he clearly does, but there is no need to look at his action and see him as a future rapist. He is just a teenager doing what he thinks will get him girls. All he needs is somebody clearly saying, that such behavier is not accepted and is especially not how you get girls. There is no need for jail or sexsual predator lists, just a firm hand and some clear clarification.

There's no indication that he's going to be sentenced as an adult...if that's what you mean.

I'm not saying he should have his dick cut off or anything like that...but he needs more than a slap on the wrist. At 15 years old...you should damn well know better than to just start grabbing at girls asses and breasts...especially after she tells you to stop.

[Flurryfang]

There's no indication that he's going to be sentenced as an adult...if that's what you mean.

I'm not saying he should have his dick cut off or anything like that...but he needs more than a slap on the wrist. At 15 years old...you should damn well know better than to just start grabbing at girls asses and breasts...especially after she tells you to stop.

You don't need to be an adult to be hit with a hard sentence. Especially in a time, where people are very sensitive about sexsual assualt.

Well, what would be a prober punishment then? I think, that it is very hard not to give a too hard punishment to this kid, if some strong words and some at-home punishments is not enough. The system of law can do very little to this kid, unless they want to send him to jail or brand him as something bad, which will impact his life.

[Araya]

He will most likely have probation, community service and have to register as a sex offender, all of which I agree with. At 15 he's nearly an adult, he should know better. Using a "boys will be boys" is the worst excuse in the book.

[Flutterguy]

What if he says no?

Males can't say no.

[Evil Midnight Bomber]

Well, what would be a prober punishment then? I think, that it is very hard not to give a too hard punishment to this kid, if some strong words and some at-home punishments is not enough. The system of law can do very little to this kid, unless they want to send him to jail or brand him as something bad, which will impact his life.

He did do something bad though. His life needs to be impacted. He needs a serious course correction or he could end up thinking he can get away with this kind of behaviour.

Does he need to go to jail? Maybe not...but there are lots of options the system has to deal with this kind of thing. Community service, counselling, probation...etc.

[Araya]

We have mandatory sex ed starting around grade 4. So the excuse of he didn't know what he was doing is BS, unless he has a mental disability of some kind that hasnt been mentioned. If he doesnt want a label like that he shouldnt have done it in the first place. The incentive to not do it, is to not get a label/mark on you for the rest of your life. Though I don't know for sure in Alberta as I don't live in that province, but here, if you get into a serious enough fight, even in grade school, you can and will be charged. And no none of this is silly, what you are suggesting is silly.

[Polyxo]

Boys also know they're not supposed to hit people, but they do it anyway because they are immature. And this wasn't that serious, he groped a girl far too aggressively, obviously way over the line but he wasn't violent about it. Violence would have me worried.

With regard to the label, do you honestly think that this act makes him irredeemable to the point that others need to be warned if he's living near them for literally the rest of his life?

Groping 'not far too aggressively' is sexual assault. He repeatedly sexually assaulted a girl who was actively resisting.

[Jonnusthegreat]

Where is the video evidence?

[Masark]

Where is the video evidence?

Sealed. Both the victim and perpetrator in this case are minors and thus subject to an identification ban. See page 3 of the ruling for the description of it.