SUPREME COURT OF CANADA

Appeal heard: October 16, 2018 Judgment rendered: October 16, 2018 Docket: 37972

Between:

Warrant Officer J.G.A. Gagnon

Appellant

and

Her Majesty The Queen

Respondent

• and -

Women’s Legal Education and Action Fund Inc.

Intervener

Official English Translation

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 4)

Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. concurring)

R. v. Gagnon, 2018 SCC 41, [2018] 3 S.C.R. 3

Warrant Officer J.G.A. Gagnon Appellant

v.

Her Majesty The Queen Respondent

and

Women’s Legal Education and Action Fund Inc. Intervener

Indexed as: R. v. Gagnon

2018 SCC 41

File No.: 37972.

2018: October 16.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

on appeal from the court martial appeal court of canada

Criminal law — Sexual assault — Defences — Honest but mistaken belief in consent — Chief Military Judge putting defence of honest but mistaken belief in consent to court martial panel — Accused acquitted of sexual assault — Appeal Court finding that defence could not be put to panel before limitations set out in Criminal Code were considered — Setting aside of acquittal and order for new trial affirmed — Criminal Code, R.S.C. 1985, c. C‑46, s. 273.2 (b).

Cases Cited

Referred to: R. v. George , 2017 SCC 38 , [2017] 1 S.C.R. 1021.

Statutes and Regulations Cited

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

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Bennett and Trudel JJ.A.), 2018 CMAC 1 , [2018] C.M.A.J. No. 1 (QL), 2018 CarswellNat 234 (WL Can.), setting aside the acquittal of the accused and ordering a new trial. Appeal dismissed.

Mark Létourneau , Jean-Bruno Cloutier and Francesca Ferguson , for the appellant.

Dominic G. J. Martin , Bruce W. MacGregor and Anthony T. Farris , for the respondent.

Kelly McMillan and Shaun O’Brien , for the intervener.

English version of the judgment of the Court delivered orally by

Reasons for Judgment

[ 1 ] The Chief Justice — We are all of the opinion that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court of Canada.

[ 2 ] However, with respect, on the record before us, we are of the opinion that there was no evidence from which a trier of fact could find that the appellant had taken reasonable steps to ascertain that the complainant was consenting.

[ 3 ] In so concluding, we are also of the view that the principles enunciated in R. v. George , 2017 SCC 38 , [2017] 1 S.C.R. 1021, are of no assistance in applying s. 273.2 of the Criminal Code , R.S.C. 1985, c. C-46.

[ 4 ] It follows that the defence of honest but mistaken belief should not have been put to the panel.

Judgment accordingly.

Solicitor for the appellant: Defence Counsel Services, Gatineau.

Solicitor for the respondent: Canadian Military Prosecution Service, Ottawa.

Solicitor for the intervener: Women’s Legal Education and Action Fund Inc., Toronto.