Hart, McLeod, Dube, Foote, Formenton charged with sexual assault

[Scroopy Noopers]

Originally Posted by IamNotKenKing

Hey Pepsi, you know what MBates does for a living, right?
Kinda not the person to argue with on this one…

But also the best if you’re interested in teasing out more information.

[PepsiFree]

Originally Posted by IamNotKenKing

Hey Pepsi, you know what MBates does for a living, right?
Kinda not the person to argue with on this one…

lol I know the risk, I’ve been obliterated by MBates’ knowledge before and have full respect for that poster.

But I’m pretty confident in this position. I framed the situation pretty carefully and have a couple court cases in my pocket to play internet lawyer with.

[IamNotKenKing]

Originally Posted by PepsiFree

lol I know the risk, I’ve been obliterated by MBates’ knowledge before and have full respect for that poster.

But I’m pretty confident in this position. I framed the situation pretty carefully and have a couple court cases in my pocket to play internet lawyer with.

[Goriders]

Originally Posted by DJones

A drunk teenager telling a story about 7 years ago is pretty much by default unreliable.

On both sides of the docket

[Makarov]

Originally Posted by MBates

Situation A is, by definition, a sexual assault according to Canadian law. In other words, the correct legal answer to your question, "In which situation was there consent?" is none of the above.

Genuine question: how can we know that it is a sexual assault when Pepsi doesn't say (in his hypothetical) whether she consented or not? Or are you taking the silence re consent as meaning non-consent (understandable)?

I agree that her belief that she wasn't assaulted doesn't mean she consented and therefore was not assaulted.

[Iowa_Flames_Fan]

Originally Posted by Makarov

Genuine question: how can we know that it is a sexual assault when Pepsi doesn't say (in his hypothetical) whether she consented or not? Or are taking the silence re consent as an meaning non-consent (understandable)?

I agree that her belief that she wasn't assaulted doesn't mean she consented and therefore was not assaulted.

I don’t practice in this area, so it’s risky for me to disagree with MBates, who does… but I don’t see how it’s possible to say that Scenario A is a sexual assault under Canadian law unless we know whether the person consented to the touching. Lack of consent is part of the offence.

If MBates is saying “if there is no consent, it’s potentially assault” then I can agree. At that point there might be defences available around reasoned belief in consent and so on, but I’m way over my skis talking about anything like that.

But if MBates is saying scenario A, involving casual contact between intimate partners is always sexual assault because of the SCC ruling in JA, then I don’t think that’s right. That was (kind of) Justice Fish’s argument, but he was in the minority and I think even he would have recognized that as a bit of reductio ad absurdum. And even his example involved a sleeping partner, not one that is awake as in Scenario A. The issue in JA was not whether you could consent in advance to being touched by your partner while awake; to me there is no question that you can. You can also revoke that consent at any time, which is kind of the point.

JA does not, to me, stand for the proposition that you can’t consent in advance to being touched by your partner. Consent is always in advance: that’s how time works. JA stands for the proposition that you can’t consent in advance to being touched at a time when you can no longer give consent, or revoke the consent you gave previously.

[Makarov]

Originally Posted by Iowa_Flames_Fan

I don’t practice in this area, so it’s risky for me to disagree with MBates, who does… but I don’t see how it’s possible to say that Scenario A is a sexual assault under Canadian law unless we know whether the person consented to the touching. Lack of consent is part of the offence.

If MBates is saying “if there is no consent, it’s potentially assault” then I can agree. At that point there might be defences available around reasoned belief in consent and so on, but I’m way over my skis talking about anything like that.

But if MBates is saying scenario A, involving casual contact between intimate partners is always sexual assault because of the SCC ruling in JA, then I don’t think that’s right. That was (kind of) Justice Fish’s argument, but he was in the minority and I think even he would have recognized that as a bit of reductio ad absurdum. And even his example involved a sleeping partner, not one that is awake as in Scenario A. The issue in JA was not whether you could consent in advance to being touched by your partner while awake; to me there is no question that you can. You can also revoke that consent at any time, which is kind of the point.

JA does not, to me, stand for the proposition that you can’t consent in advance to being touched by your partner. Consent is always in advance: that’s how time works. JA stands for the proposition that you can’t consent in advance to being touched at a time when you can no longer give consent, or revoke the consent you gave previously.

I'm in the same boat as you... outside my professional bailiwick. But enjoying the discussion. Interesting and important issues.

[fotze2]

Originally Posted by PepsiFree

lol I know the risk, I’ve been obliterated by MBates’ knowledge before and have full respect for that poster.

But I’m pretty confident in this position. I framed the situation pretty carefully and have a couple court cases in my pocket to play internet lawyer with.

You didn’t change your position on something. Stop the fataing presses.

Like the guy who introduced thalidomide For expecting mothers. Ya, your kid came out looking like a rugby ball, but I’m sticking to the thalidomide theory.

[MBates]

Originally Posted by PepsiFree

Except you’re making the same mistake Cliff is and ignoring the autonomy of the woman in this scenario. Respectfully, your definition is wrong.



https://criminalnotebook.ca/index.ph...%20consent.%22

There can be no crime of sexual assault if the “complainant” (who would be the wife in this scenario) was subjectively consenting in her own mind. In situation A, because the act was consensual from the perspective of the wife, whether consent was obtained or not is irrelevant, because there would be no accusation, no charge, no trial.

That’s the point being made here. People are only going around sexually assaulting people through benign, consensual acts if you ignore the autonomy of the person on the other side and presume, from their subjective view, all of these acts are unwanted and were not consented to.

The idea that these laws are meant to criminalize ordinary, consensual behaviour is wrong. These laws criminalize behaviour to which the complainant subjectively believes they did not consent.

So I approached the scenarios as situations where people had made allegations of sexual assault...so I get what you are saying now.

You are doing ok for an internet lawyer...haha.

But ironically your example and my response(s) work well to demonstrate the point I have tried to make for some time now.

The husband can make his conduct exactly the same...and if the wife responds with "leave me alone a**hole" because something that happened that day the husband knows nothing about then its a sexual assault and if accused he would have no defence on your stated facts.

I am not saying people will all run to the police and file a complaint. Clearly that does not happen the vast majority of the time.

But again, when it does happen, I can assure you the person accused does not care how rare it is.

[MBates]

Originally Posted by Iowa_Flames_Fan

I don’t practice in this area, so it’s risky for me to disagree with MBates, who does… but I don’t see how it’s possible to say that Scenario A is a sexual assault under Canadian law unless we know whether the person consented to the touching. Lack of consent is part of the offence.

If MBates is saying “if there is no consent, it’s potentially assault” then I can agree. At that point there might be defences available around reasoned belief in consent and so on, but I’m way over my skis talking about anything like that.

But if MBates is saying scenario A, involving casual contact between intimate partners is always sexual assault because of the SCC ruling in JA, then I don’t think that’s right. That was (kind of) Justice Fish’s argument, but he was in the minority and I think even he would have recognized that as a bit of reductio ad absurdum. And even his example involved a sleeping partner, not one that is awake as in Scenario A. The issue in JA was not whether you could consent in advance to being touched by your partner while awake; to me there is no question that you can. You can also revoke that consent at any time, which is kind of the point.

JA does not, to me, stand for the proposition that you can’t consent in advance to being touched by your partner. Consent is always in advance: that’s how time works. JA stands for the proposition that you can’t consent in advance to being touched at a time when you can no longer give consent, or revoke the consent you gave previously.

You captured what I was intending and I have now corrected (except that if there was no factual subjective consent, then on the scenario given there would be no defence of mistaken belief in communicated consent).

And you are correct Justice Fish in JA was not saying all examples of advance consent were illegal...that case was dealing with a situation solely about whether a person can consent in advance to something being done in a transient state of unconsciousness.

But his point is not wrong. It is technically a crime to kiss your spouse awake in the morning because for good or bad the majority decided that Parliament does not allow people to consent to that even with a clear and unequivocal 'yes'.

[PepsiFree]

Originally Posted by MBates

So I approached the scenarios as situations where people had made allegations of sexual assault...so I get what you are saying now.

You are doing ok for an internet lawyer...haha.

But ironically your example and my response(s) work well to demonstrate the point I have tried to make for some time now.

The husband can make his conduct exactly the same...and if the wife responds with "leave me alone a**hole" because something that happened that day the husband knows nothing about then its a sexual assault and if accused he would have no defence on your stated facts.

I am not saying people will all run to the police and file a complaint. Clearly that does not happen the vast majority of the time.

But again, when it does happen, I can assure you the person accused does not care how rare it is.

Bolded for the haters! Nice try Cliff!

I figured that’s how you were approaching it, as it makes sense in that context. Would that situation lead to a conviction, or even a charge in that scenario? I don’t know, I wouldn’t think so, but I imagine you have some idea of how rare a situation exactly like that even makes it to trial (I don’t).

And I agree the points play off each other. Are people going around sexually assaulting their partners all day because they aren’t following the leg definition of how consent can and can’t be obtained? No.

Are they risking the possibility that what they’re doing could constitute nonconsensual sex/sexual assault under the legal definition if they’re not properly obtaining consent, regardless of how benign it seems? Absolutely. But that’s wildly different than Cliff’s assertion that many well-intentioned people are running around routinely engaging in nonconsensual sex and sexual assault, which is absurd. But while that risk might seem silly, I think it also offers a healthy range of protection.

Part of understanding consent goes beyond the criminal code and the courts, and is not just understanding how to legally obtain it to protect yourself and, I hope, your partner, but what consent actually is.

For me, someone sitting there saying “sure, I’ve committed sexual assault plenty of times by not obtaining consent” tells me that (hopefully) they just don’t understand consent and are just looking at it in terms of obtaining it legally. Or they actually don’t believe their partner felt what they were doing was consensual, which is deeply concerning.

[Wormius]

It probably goes beyond just sexual assault, but any touching that isn’t consented to. Like if I tap somebody on the shoulder to get their attention or have to touch somebody to get around them.

[AustinL_NHL]

Kinda seems like some posters/posts in this thread just need to disappear into thin air

[Scroopy Noopers]

Originally Posted by AustinL_NHL

Kinda seems like some posters/posts in this thread just need to disappear into thin air

I’m learning lots.

[Jiri Hrdina]

The crown has rested their case.

[The Cobra]

Originally Posted by Jiri Hrdina

The crown has rested their case.

Hart is testifying, McLeod will not.

[GFG#1]

Originally Posted by Jiri Hrdina

The crown has rested their case.

Crazy, sure doesn't seem like they proved anything without reasonable doubt, except that McLeod invited teammates to the room without her knowledge.

[CliffFletcher]

Given the number of misconceptions and unfounded assumptions about consent MBates and other lawyers have stepped in to correct, I think we can agree that this comment was way off base:

This is far less complex and consent is request/granted in far more natural, straightforward ways than people are making it out to be. If the concept of consent is hard to grasp in your own life, this is a problem.

[PepsiFree]

Originally Posted by CliffFletcher

Given the number of misconceptions and unfounded assumptions about consent MBates and other lawyers have stepped in to correct, I think we can agree that this comment was way off base:

It’s actually spot on, but I can see how you might be confused if you genuinely thought you and many other normal people were sexually assaulting their partners regularly.

The one thing that would help is remembering that consent is not just about obtaining it to legally protect yourself, it’s primarily about the feelings of your partner. I think you should try centering them in how you approach things and think less about your actions as stuff you’re simply doing/trying to get away with, as then it becomes very much straightforward.

[InternationalVillager]

Originally Posted by MBates

It is technically a crime to kiss your spouse awake in the morning because for good or bad the majority decided that Parliament does not allow people to consent to that even with a clear and unequivocal 'yes'.

So basically we see this crime demonstrated in many movies, tv shows etc.