EDMONTON — An Alberta judge who overturned a teenager's acquittal on a sexual assault charge has delivered a scathing "No means No" lesson to a lower-court colleague and his take on how victims are supposed to behave.
Justice J.E. Topolniski of the Court of Queen's Bench says the trial judge was wrong in his interpretation of the law in the case of a 15-year-old girl who was sexually assaulted by a boy at her high school.
The ruling issued July 21 says the girl initially laughed after the boy made suggestive comments and grabbed or touched her buttocks several times in a recorded incident that shows her smiling and giggling.
It says the boy then pushed the girl into a locker, where he again grabbed her buttocks and breasts and tried to kiss her but the girl moved out of the way and told him to go the opposite way as she turned a corner.
Topolniski says the boy followed the girl, pushed her into a closed doorway and proceeded to grab her buttocks and breasts and tried to kiss her as she attempted to push him away and fend him off with a water bottle.
The ruling says the girl said "No" and later texted a friend and attached a smiley face emoji with tears coming from its eyes and an acronym of "laughing my ass off."
"In this case, the trial judge rejected almost all of the complainant's evidence, finding that her actions were inconsistent with non-consensual sexual touching," Topolniski says.
The lower-court judge noted in his decision in April that the complainant did not seem dismayed after hearing the boy's disrespectful comments or call for help to a nearby janitor or passerby.
The ruling says the trial judge also noted that after being pushed into the doorway the girl "peacefully emerged" with her water bottle in one hand and a book in the other an did not communicate "any serious objection clearly to the accused."
Topolniski wrote: "The word 'No' does note 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."
She said the complainant's state of mind after the incident is irrelevant to the question of consent.
"The requirement that a complainant raise the hue and cry has long since passed into the mists of time."
In overturning the acquittal, Topolniski convicted the boy. The case will return to youth court.
