40447 Factum of the Intereners, West Coast LEAF and LEAF - Suitable for Posting

By way of example, the court below held that the trial judge’s finding that it was “unlikely” that the respondent and the complainant had shared a gin and tonic “given that they were mostly strangers” was permissible, falling into the “class of inferences that could fairly be drawn”.9 In contrast, the trial judge’s rejection of the respondent’s evidence that the complainant had encouraged and enjo. [...] This led the court to find that the judge was relying on an assumption not supported by the evidence when she concluded that the complainant did not consent to being spanked.29 By focusing exclusively on what occurred after the complainant got into the back seat, rather than the totality of evidence, the reviewing court failed to appreciate that the trial judge’s “assumption” was rooted in the com. [...] As Parliament has directed and this Court has repeatedly explained, consent is the “voluntary agreement of the complainant to engage in the sexual activity in question,” which involves “particular behaviours” and is tied to the specific context in the case.39 Consent must be freely given40 and “specifically directed to each and every sexual act.”41 Canadian law does not recognize “implied consent”. [...] By way of example, the reviewing court’s application of the Rule in assessing the trial judge’s credibility findings failed to consider the law of consent. [...] Barton and properly considered whether reasonable steps were taken to ascertain consent by the respondent given the increasingly invasive nature of the sexual activity, and the fact that the respondent and complainant were unfamiliar with each other, increasing the risk of miscommunications.46 24.