R. v. Gagnon 2018 SCC 41

R. v. Gagnon 2018 SCC 41

Date	2018-10-16
Neutral citation	2018 SCC 41
Report	[2018] 3 SCR 3
Case number	37972
Judges	Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from	Court Martial Appeal Court of Canada

Reasons for Judgment:

• Delivered by: Chief Justice Wagner (Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe, and Martin JJ. concurring)

Case Background:

• Charges: Warrant Officer J.G.A. Gagnon was accused of sexual assault.
• Initial Trial: Gagnon was acquitted by a court martial panel. The Chief Military Judge had put the defence of honest but mistaken belief in consent to the panel.
• Court Martial Appeal Court: The majority found that the defence could not be considered without first addressing the limitations set out in the Criminal Code. The acquittal was set aside, and a new trial was ordered.

Key Legal Issues:

1. Whether the defence of honest but mistaken belief in consent should have been put to the court martial panel without considering the limitations in section 273.2(b) of the Criminal Code.
2. Whether there was evidence to show that Gagnon took reasonable steps to ascertain that the complainant was consenting.

Supreme Court Ruling:

• Judgment: The Supreme Court dismissed the appeal, upholding the decision of the Court Martial Appeal Court and affirming the order for a new trial.

Rationale:

1. Limitations on the Defence of Honest but Mistaken Belief:
   • The Supreme Court agreed with the majority of the Court Martial Appeal Court that the defence of honest but mistaken belief in consent should not have been put to the panel without first addressing the requirements of section 273.2(b) of the Criminal Code. This section requires that the accused take reasonable steps to ascertain that the complainant is consenting.
2. Evidence of Reasonable Steps:
   • The Supreme Court found no evidence in the record to indicate that Gagnon had taken reasonable steps to ensure the complainant’s consent. Therefore, the defence of honest but mistaken belief in consent was not applicable in this case.
3. Relevance of R. v. George:
   • The principles enunciated in R. v. George, 2017 SCC 38, were found to be of no assistance in applying section 273.2 of the Criminal Code to this case.

Conclusion:

• The Supreme Court concluded that the defence of honest but mistaken belief in consent was improperly put to the panel and that there was no evidence of reasonable steps taken by Gagnon to ascertain consent. As a result, the appeal was dismissed and the order for a new trial was affirmed.

Statutes and Regulations Cited:

• Criminal Code, R.S.C. 1985, c. C-46, s. 273.2.

Representation:

• For the Appellant: Mark Létourneau, Jean-Bruno Cloutier, and Francesca Ferguson, Defence Counsel Services, Gatineau.
• For the Respondent: Dominic G. J. Martin, Bruce W. MacGregor, and Anthony T. Farris, Canadian Military Prosecution Service, Ottawa.
• For the Intervener: Kelly McMillan and Shaun O’Brien, Women’s Legal Education and Action Fund Inc., Toronto.

Judgment: Appeal dismissed, order for new trial affirmed.