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College of Physicians and Surgeons:  Failure to Warn

College of Physicians and Surgeons

College of Physicians & Surgeons
of Saskatchewan

101 - 2174 Airport Drive
Saskatoon, Saskatchewan
Canada  S7L 6M6

Email:  cpssinfo@cps.sk.ca

Website:  CPSS

Washington State v. Becklin #79354-9

Precedent:  Stalking by Proxy is a Crime

During deliberations, the jury posed a question to the judge: Can you stalk a person through a third party? Yes, replied the Superior Court Judge. The stalking law may not explicitly refer to harassment through third parties, but it's broad enough to include that. Stalking encompasses the act of directing others to harass a victim.

Events of the case: When Mary McGee left boyfriend Andre Becklin, he stalked her and forced his way into her home. McGee got a protection order. According to police, Becklin then recruited his friends to stalk her, while he maintained an outward appearance of staying at arm's length. Still, Becklin was arrested for violating the restraining order.

Testimony at Trial: McGee described how Becklin's friends drove his car past her house, circling the block repeatedly. One friend trailed her when she went out of her home. Two witnesses confirmed that they filled out written reports for Becklin recounting their sightings of McGee around town.

Argument from Counsel: The defence lawyer contended: Becklin never personally stalked McGee. The prosecutor said: Assistance. Aiding and abetting, that's what this case is about. Enlisting others to do your own dirty work, and that's what Mr. Becklin did.

Decision: The crime of stalking can be accomplished through a third person. If you recruit a third party to intimidate someone, it's still stalking. The legal term is stalking by proxy. Becklin was convicted and sentenced to one year in jail; he paid $40,000 in legal costs and lost his right to vote.

Stalking by Proxy is Still Stalking

R. v. Ewanchuk (1999) SCC

Canadian Supreme Court:   The No Means No Precedent

Steve Ewanchuk thought NO meant maybe later or maybe yes – an invitation to further and better persuasion.  To him, NO meant anything but no.  This landed him in jail.  The Supreme Court ruled:  A sex act becomes a criminal act the moment someone objects to it. The law affords each person the peace of mind of knowing their bodily integrity and autonomy will be respected regarding when and whether they participate in intimate activity.

Honest But Mistaken Belief – Limited Defence

Canadian law allows a defence of honest but mistaken belief in consent if the accused acted innocently based on a flawed perception of the facts. Where such a defence is raised, consent is examined from the perspective of the accused:

  • The accused must show that he believed the victim communicated consent in some way; that the victim effectively said yes.
  • This belief cannot be based on pure speculation. Rather, the belief must arise from the victim's direct words and/or conduct.
  • The accused cannot say he thought no meant yes.
  • If at any point the victim expressed unwillingness, then the accused must point to some real evidence which caused him to resume his advances.

An honest but mistaken belief is never based on a victim's silence, passivity or ambiguous conduct (which is often spawned by fear, fraud or the exercise of authority). One cannot turn the victim's lack of agreement to sexual touching into an invitation for escalated contact. Whenever honest belief is claimed, the court will sternly probe the honesty of that belief. An honest belief cannot be reckless, willfully blind, or tainted by an awareness of any factor enumerated in the Canadian Criminal Code sections 265 and 273.

Implied Consent – Nonexistent Defence

A court will reach one of two conclusions: the victim either consented or not. There is no third option. Although the doctrine of implied consent is recognized in common law jurisprudence in several contexts, this does not apply to the realm of sexual assault. Moreover: consent must be freely given to be legally effective. Madame Justice L’Heureux-Dube wrote bluntly:

The concept of implicit consent does not derive from any findings of fact, but from mythical assumptions that when a woman says NO she is really saying yes, try again, or persuade me.  This myth denies women's sexual autonomy and implies that women are walking around this country in a state of constant consent to sexual activity.

[For the word women substitute disabled women and you confront the precise attitude of predator Dr. Joel Yelland of Saskatoon.]

Canadian Criminal Code

Assault

CCC s 265. (1)  –  A person commits an assault when:

  1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application

CCC s 265. (2)  –  This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

CCC s 265. (3)  –  For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:

  1. the application of force to the complainant or to a person other than the complainant;
  2. threats or fear of the application of force to the complainant or to a person other than the complainant;
  3. fraud; or
  4. the exercise of authority.
Accused’s Belief as to Consent

CCC s 265. (4)  –  Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Canadian Criminal Code

Sexual Assault

CCC s 271.  –  Everyone who commits a sexual assault is guilty of:

  1. an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
  2. an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm

CCC s 272. (1)  –  Every person commits an offence who, in committing a sexual assault,

  1. carries, uses or threatens to use a weapon or an imitation of a weapon;
  2. threatens to cause bodily harm to a person other than the complainant;
  3. causes bodily harm to the complainant; or
  4. is a party to the offence with any other person.
Meaning of Consent

CCC s 273.1 (1)  –  Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where No Consent Obtained

CCC s 273.1 (2)  –  No consent is obtained, for the purposes of sections 271, 272 and 273, where:

  1. the agreement is expressed by the words or conduct of a person other than the complainant;
  2. the complainant is incapable of consenting to the activity;
  3. the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  4. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  5. the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Where Belief in Consent Not a Defence

CCC s 273.2  –  It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where:

  1. the accused's belief arose from the accused's (i) self-induced intoxication, or (ii) recklessness or willful blindness; or
  2. the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[ CCC s. 272(1)(d) acknowledges sexual assault by or involving a third party. That section makes it a crime to commit assault by acting as a party to the offence with any other person. In Canada, stalking by proxy is therefore a crime, at least when third-party involvement culminates in assault. The instigator who aids and abets shares the guilt and the consequences. ]

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.