2 videos, consent and the law
Good morning. I’m Katie Nicholson, a senior reporter based in Toronto and I’m in London covering the trial.
On Wednesday, we saw a lot of videos, pictures and texts, but none may be as contentious going forward as two short videos of E.M., the complainant, appearing to give consent.
The videos were taken roughly an hour apart from the phone of Michael McLeod, one of the five accused men, in the early hours of June 19, 2018.
Lisa Kerr, a law professor at Queen’s University in Kingston, Ont., says it’s not clear if video evidence like that is particularly helpful for the defence or the Crown.
Kerr suggests the defence may argue “this is a person who was clearly OK with what happened and they only changed their story later.” Or, she suggests, they might use it if it contradicts something she says at trial and perhaps undermines her credibility as a witness.
“On the other hand,” Kerr told me, “the Crown might say, ‘Why was this video made, especially after the sexual activity? Was there a concern about the lack of consent? Was this an attempt to sort of make up for the lack of consent at the time of the sexual activities?’”
“In Canadian law,” Kerr says, “consent has to be contemporaneous with the sexual activity. So if you have a video of someone saying, ‘I consent to do the following,’ and it’s in advance, the key question is still going to be: Did they change their mind?”
Kerr says the video evidence may not determine whether consent was given for each alleged act that night, and the jury, as the Crown argues, will have to consider what may have happened before and after those videos were taken.
But Kerr does think the videos will help jurors get a sense of what else might have been happening and make other inferences. Their conclusions will depend on the rest of the evidence presented in the case and what they make of all of it.
