[
Reasonable steps to confirm consent
Daphne Gilbert, a professor of criminal, constitutional and advanced sexual assault law at the University of Ottawa, says it’s possible the judge will find E.M. did not consent, but that some or all of the five accused had an honest mistaken belief that she did.
In that defence, the accused must have taken reasonable steps to confirm the complainant’s consent, something the Crown argues the players did not do.
“The Supreme Court of Canada has been very clear that the reasonable steps requirement will change depending on the context of the sexual activity,” said Gilbert, who is covering this case in four lectures this coming fall.
She said strangers, for example, need to take extra steps to confirm consent. The same goes for situations where intoxication is a factor. Gilbert is hoping Carroccia’s decision clarifies what constitutes a “reasonable step” in situations like E.M.’s, which involved both strangers and alcohol.
“That’s the main legal question that I’m looking for,” Gilbert said.
The professor said she hopes the judge uses “strong language” to condemn what happened in that hotel room that night, even if she finds it did not meet the very high legal bar of guilt beyond a reasonable doubt.