‘No consent means no touching; joking or not’
A Saskatchewan court has convicted a Regina man of sexual assault after finding he humiliated a gas station attendant under the pretence of a joke, a case with implications for employers of front-line, customer-facing workers.
Provincial Court Judge S.D. Schiefner found Michael Bernhardt guilty in a July 6 decision arising from an Oct. 15, 2025 incident. The complainant, identified only as M.L. under a publication ban, worked at a "full-service" gas station in Regina.
The incident
According to the decision, Bernhardt criticized the attendant for "doing it wrong" after fuelling his truck, then pressured him to tell a joke, saying it "would be ok" if he did.
Bernhardt then asked to "show" a joke in return. He directed the attendant to raise his arms behind his head — a position he called a "Full Nelson" — then grabbed his waist from behind and thrust his hips into his buttocks twice, calling it "my way of showing dominance."
A workplace security camera captured the incident. The judge found the footage "corroborated M.L.'s description of Mr. Bernhardt grabbing him by the waist and thrusting his groin into his buttocks."
The attendant disclosed the incident to a co-worker that day, according to the legal document. When Bernhardt returned the next afternoon, he mimed the same routine on the co-worker without touching her, telling her, "I would 'do' it to you, but you are a girl," before pointing at the attendant and saying he "knows the 'Three Nelsons' joke and that's why he so grumpy,” the document stated.
The court's findings
Applying the Supreme Court's test from R v Chase, Schiefner found the contact was sexual in nature on an objective basis, ruling "the sexual nature of his actions would be visible to any reasonable observer."
The court rejected the defence's argument that the attendant's cooperation in raising his arms amounted to consent, finding it was part of the routine's misdirection. Schiefner wrote that "consent to contact of a sexual nature cannot be obtained by subterfuge," and that Bernhardt could not have honestly believed he had consent because he never disclosed his actual intentions.
The judge found the attendant highly credible, noting "there is no correct way for a person to report having been the victim of an assault, let alone a sexual assault."
Ruling and implications
Schiefner cited a 2019 New Brunswick decision in which Judge Sivret found that touching which violates sexual integrity without consent is assault "even though it was done in a context of a joke. No consent means no touching; joking or not!"
Schiefner concluded: "Physical contact of a sexual nature without consent is sexual assault – joke or no joke!" Sentencing has not yet taken place.
Earlier this year, an alleged sexual assault on a cannabis store worker in Winnipeg prompted renewed scrutiny of retail safety measures in Manitoba.
