Toronto Star

February 26, 1999

Judge's sex case ruling `delights' women

Belief of implied consent no defence in assault trial

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - Women's groups are hailing a Supreme Court of Canada ruling that upholds the ``no-means-no'' law and trounces any notion of implied consent in sexual assault.

``There is no defence of implied consent to sexual assault in Canadian law,'' wrote Justice John Major for the unanimous nine-member panel.

``A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence. An accused cannot say that he thought `no meant yes.' ''

The court's two female justices went even further, issuing side judgments that took the lower court judges to task for perpetuating ``myths and stereotypes'' about women in sexual assault cases.

In a sweeping dismissal of how the lower Alberta courts handled a 1994 sexual assault case, the country's top court used its rarely invoked power to convict carpenter Steve Brian Ewanchuk, 49, of sexually assaulting a 17-year-old girl during a job interview in 1994.

The case drew national attention for a trial judge's invention of the ``implied consent'' idea, as well as an appeal judge's comments Ewanchuk made ``clumsy passes'' that were more ``hormonal than criminal'' and his observation the girl didn't present herself in a ``bonnet and crinoline.''

The Supreme Court of Canada's decision unequivocally tossed out Ewanchuk's acquittal, saying a new trial would not be in the public interest. Instead, the high court justices ordered Ewanchuk back before trial Judge Ken Moore for sentencing only. At that time, his criminal record of four sex offences will be a factor.

Convicted of three rapes between 1970 and 1973 and one sexual assault in 1989, Ewanchuk did not testify at his 1995 trial. So the crown could not introduce his criminal record to attack his credibility.

`Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. It follows that any intentional but unwanted touching is criminal.'
- John Major
Supreme Court justice

Karen Smith, executive director of the Sexual Assault Centre of Edmonton, said she was ``delighted'' with the ruling, which may encourage more victims of sexual assault to take their cases to court.

That's exactly the message Justice Minister Anne McLellan hopes people will take. McLellan told Canadian Press the ruling ``goes a long way to eradicating'' stereotypes that have existed in Canadian law and provides a ``high degree of clarity now for lower courts in this country.''

In fact, the 26-page ruling by Major spells out, step by step, how trial courts should go about determining whether a crime has been committed in sexual encounters - a primer of sorts on what's been called the blurry line between consent and non-consent.

For the Supreme Court of Canada, the line is not blurry.

``The complainant either consented or not. There is no third option.''

The court unanimously endorses the 1992 ``no-means-no'' law passed by Parliament that says there is no consent where there is force, fear, threats, fraud or the exercise of authority.

`The complainant either consented or not. There is no third option.'
- John Major
Supreme Court justice

``Having control over who touches one's body, and how, lies at the core of human dignity and autonomy,'' wrote Major. ``It follows that any intentional but unwanted touching is criminal.''

The ruling says trial judges or juries must still assess credibility in light of all the evidence, including a complainant's words and actions before and during an incident.

In the Ewanchuk case, the evidence was clear the 17-year-old girl did not welcome his advances, said the high court. Ewanchuk, on the premise of interviewing her for a job, had led her into his trailer to show her woodworking projects.

The girl testified she thought Ewanchuk had locked the door and, fearing he would become violent, she complied when he requested a back massage, then allowed him to massage her.

When his hands wandered to her breasts, and when his groping turned to unzipping his pants and grinding his pelvis against hers, she said ``No'' three times and ``Just please stop.'' Apart from remaining ramrod stiff, the girl did not physically resist the man, who was twice her size.

The unanimous decision drew scathing comments from Toronto criminal defence lawyer Alan Gold, who said it puts ``complainants on a pedestal'' by absolving them of any responsibility for their conduct.

``This radical feminist judgment is just extremely disappointing in 1999,'' Gold said in a television interview. ``This is a 1989 set of beliefs.

``This protocol for human sexuality is ridiculous,'' he said.

``It turns it into a business-like formalistic affair where everything must be absolutely clear. I mean, human sexuality is governed in many cases by the height of ambiguity and nuance and all kinds of things that aren't susceptible to this kind of subsequent verbalization.''

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