Alberta Report

Monday, March 15, 1999

No Such Word As 'Yes'

The Supreme Court Has Dealt A Death Blow To The 'Myth' Of 'Implied Consent.' Has It Turned The Presumption Of Innocence Into A Myth Too?

by Shane Hill

The basic story of the Ewanchuk case is now nationally known. A socially maladjusted Edmonton woodworker makes a grotesque but non-violent pass at a teen during a job interview in his trailer; the teen panics and tries to have the woodworker clapped in jail for sexual assault; the Supreme Court overturns the acquittal, saying that the teen's "feeling of fear" was paramount; and the appeal judge writes a sarcastic letter accusing a Supreme Court judge of causing an epidemic of suicide with her rulings. And amidst all the resulting furor, one might almost forget the issue at the heart of the case: our legal system's presumption of innocence.

As Canadian law now stands, that presumption of innocence takes second place to an accuser's subjective feelings in cases of sexual assault. Newspaper headlines about the decision trumpeted a victory for the principle that "no" means "no," but the language of the Supreme Court's Ewanchuk ruling suggests that passive silence, or even a "yes," might mean "no" the next day if a woman says she felt fear during a sexual encounter and successfully hid it. The ruling has initiated a national debate about sex and the law-a debate which might never have stayed in the papers so long if not for the astonishing behaviour of Alberta Court of Appeal Justice John McClung, whose ruling was overturned.

Within hours of the decision's release two weeks ago, Mr. Justice McClung fired off a letter to the National Post criticizing Supreme Court Justice Claire L'Heureux-Dube's "graceless slide into personal invective...Whether the Ewanchuk case will promote the fundamental right of every accused Canadian to a fair trial will have to be left to the academics. Yet there may be one immediate benefit," he wrote. "The personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec."

The attack sent legal circles into a flap and made headlines across Canada. An enterprising reporter found out that Justice L'Heureux-Dube's husband, Arthur Dube, a metallurgy professor, had committed suicide in 1978. Others recalled that in 1991, her 22-year-old son had brandished a loaded gun at her in her apartment and she had feigned illness so he would call an ambulance. His lawyer argued that he was depressed.

Asked by a reporter if he knew of Justice L'Heureux- Dube's husband's suicide, Mr. Justice McClung replied, "Oh, I didn't know that. God, no, I didn't know." He publicly asked pardon for his "overwhelming error" and expressed regret for the personal injury he had unwittingly caused, saying, "no circumstances could justify the media as the avenue for my disappointment." It did nothing to dampen the outrage in legal and academic circles, however, nor to stifle cries from feminist groups that Mr. Justice McClung should be removed from the bench.

"We don't believe for a moment that the brief letter of apology repairs any of the damage that [Mr. Justice] McClung has done," said Bonnie Diamond, executive director of the National Association of Women and the Law, one of the groups which launched a complaint against him with the Canadian Judicial Council. (Mr. Justice McClung declined to be interviewed last week, saying he considered the matter before the council as being before the courts.)

But layers of the story continued to unravel. Edward Greenspan, Canada's most famous criminal defence lawyer, rushed to Mr. Justice McClung's aid, writing in a published column that Madam Justice L'Heureux-Dube "drew first blood." Her "unnecessary and mean-spirited" concurring statements in Ewanchuk, Mr. Greenspan wrote, "in effect" labelled Mr. Justice McClung "the male chauvinist pig of the century, the chief yahoo from Alberta, the stupid, ignorant, ultimate sexist jerk" in a Supreme Court decision that would be "recorded forever in Canadian legal history." Madam Justice L'Heureux-Dube "was hell-bent on re-educating [Mr. Justice] McClung, bullying and coercing him into looking at everything from her point of view."

The conservative-leaning REAL Women of Canada entered the fray by filing a CJC complaint against Madam Justice L'Heureux-Dube. Her "failure to impartially apply the law and decide cases with their legal merit" justifies her removal from the bench, REAL Women contends. Judges are supposed to refrain from political activity, but after her appointment to the bench in 1973, the judge founded the feminist Canadian Research Institute for the Advancement of Women in 1976 and then served on its board of directors until 1979. In 1981 she served as the Canadian vice-president for the feminist International Federation of Women Lawyers, which endorsed the UN Convention Against All Forms of Discrimination Against Women, a document Madam Justice L'Heureux- Dube quoted with approval in the Ewanchuk case.

REAL Women also objected to the justice's citing of the works of American feminist Catharine MacKinnon, who was closely involved in drafting Bill C-49, which was introduced by justice minister Kim Campbell in 1992 and which became sections 273.1 and 273.2 of the Criminal Code-the sexual assault laws being interpreted in the Ewanchuk case. Ms. MacKinnon is renowned for her view that in a patriarchal society, all heterosexual sex is rape. "Politically, I call it rape whenever a woman has sex and feels violated," she wrote in her book, Feminism Unmodified.

While the legal and academic brawl continued, issues that have been festering for years erupted in the public domain. Canadians jammed talk show lines to discuss judicial activism, judges' biases, the Ewanchuk case itself, and its broader implications for Canadian sexual assault law and relations between men and women. Yet with all the media saturation, the known facts of the case have been only sketchily reported.

Ewanchuk, who had three previous rape convictions from the 1970s and a sexual assault conviction in 1989, chose not to testify at his trial, so the only evidence concerning the assault was provided to the courts by the complainant, who was described by the trial judge, Court of Queen's Bench Justice Ken Moore, as "an articulate and intelligent young woman...a credible witness."

On June 2, 1994, Ewanchuk, then 39, approached two teenagers, Christine and the complainant, at a mall parking lot in Edmonton and asked if either of them needed a job. As it happened, they both did. Christine was unemployed, and the complainant, the 17-year-old mother of a six-month-old infant, had a part-time job but was looking for additional work. Ewanchuk told them he was a woodworker and he needed employees to work in booths selling his products. Christine gave him their number.

The next morning, Ewanchuk telephoned the apartment where the two young women lived with their boyfriends. Christine said she was too tired to get out of bed and refused the call. The complainant agreed to meet him at the mall parking lot for an interview. Their entire encounter at the parking lot lasted approximately 2 1/2 hours.

The complainant testified that a "very businesslike, polite" conversation took place in Ewanchuk's van, after which she asked if she could have a cigarette. Ewanchuk said he was allergic to smoke, so they moved outside, where he asked if she would like to see some of his work in a trailer attached to the van. She complied, and Ewanchuk followed the complainant into the trailer, closing the door behind him. She testified that she believed he had locked it and she became frightened. She said she thought the door was like a bathroom door, with a little button that locks but can be easily opened with a turn of the handle. She never tried the door. It was a Friday, so people were coming and going right outside the windows of the trailer.

Once inside the trailer, the complainant said she and Ewanchuk spent 10 or 15 minutes looking at pictures of his woodwork before their conversation turned personal. She told him about her baby and boyfriend and that money was scarce. According to the trial judge's statement of facts, she told Ewanchuk that "she was an open, friendly and affectionate person; and that she often liked to touch people." Ewanchuk said the same. The complainant said Ewanchuk touched her hand, arms and shoulder as he spoke to her. He said he was feeling tense and asked her for a massage. She sat on the floor behind him, massaging his shoulders and arms while they continued talking, and then traded places so he could massage her.

The young woman swore she was "scared" during the encounter and did not want Ewanchuk to touch her, but that, following the advice of a television program, she was trying to appear comfortable, not wanting to "egg [him] on" and fearing he might use force. During the mutual massaging, Ewanchuk told the complainant to relax and not be afraid. His massaging became more intimate. She testified that "he started to try to massage around my stomach, and he brought his hands up around-or underneath my breasts, and he started to get quite close up there, so I used my elbows to push in between, and I said, 'No.'" He stopped, and then resumed the non-sexual massaging, to which the complainant again said, "No." Again he stopped, saying, "See, I'm a nice guy. It's okay."

Ewanchuk asked the complainant to turn to face him and he began to massage her feet. He progressed from her feet up her bare legs to her inner thigh, then lay on top of her, grinding his pelvic area against hers. The complainant testified that he said "that he could get me so horny so that I would want it so bad, and he wouldn't give it to me because he had self-control." After less than a minute of this in which the complainant lay "bone straight," she asked him to stop. "I said, 'Just please stop.' And so he stopped." She testified, "He said to me, 'I had you worried,

didn't I? You were scared, weren't you?' And I said "Yes, I was very scared." The accused asked her if he trusted him not to hurt her. She replied, "Yes, I trust that you won't hurt me," though only because she was "scared" and hoped to prevent him from using force.

Ewanchuk lay on top of her again, this time fumbling his soft penis out of his shorts and rubbing it against her clothed pelvic area. At this point, she said, "No, stop." Ewanchuk stopped immediately, got off her and said something like, "It's okay, see, I'm a nice guy, I stopped." He hugged her and gave her a $100 bill from his wallet, telling her it was for the massage, and that he would call her again. She asked to leave. Ewanchuk opened the door and she stepped outside. The complainant walked home emotionally upset. Ewanchuk telephoned to ask if she was all right, and she called the police, who used the name and number he had given her to track him down and arrest him.

At the trial, Mr. Justice Moore observed that there was no evidence of confinement; the complainant freely entered the trailer and left when she asked to. The accused did not lie about who he was and did not use force or threaten her in any way. "[The complainant] is a credible witness and I know that she was afraid," he wrote. "However, she successfully kept all her thoughts, emotions, and speculations deep within herself. She did clearly communicate with the one word 'No' on three separate occasions, and on each occasion [the accused] stopped."

Ewanchuk did not argue that he had an "honest but mistaken belief in consent," but that there was no "absence of consent" since the complainant had "implied consent." The accused "is presumed innocent," Mr. Justice Moore wrote. "The Crown must prove lack of consent (and the accused's knowledge of the lack of consent) beyond reasonable doubt." Mr. Justice McClung, writing for the majority in the Court of Appeal in February 1998, upheld Mr. Justice Moore's acquittal, adding that "To exclude the belief of the accused from any contribution to the consent issue (and quite possibly his own fate) cuts across enshrined Canadian criminal law precepts and renders the law uncertain, inconsistent and resented."

Mr. Justice McClung noted that "Every right-minded Canadian, male or female, deplores violence against women. But even the pursuit of a violence-free society must not be allowed to repudiate, or even dilute, the entrenched and statutory safeguards of our jurisprudence, which have long and fairly protected those accused of a serious crime." What really set feminists off, however, was Mr. Justice McClung's note that the plaintiff "did not exactly present herself in bonnet and crinolines." Later he said he was referring to her "sexual maturity" rather than her attire, but the comment provoked the wrath of women's groups, and the Legal Education and Action Fund and the Disabled Women's Network intervened in the Supreme Court appeal.

In a dissent to Mr. Justice McClung's decision, Alberta Court of Appeal Chief Justice Catherine Fraser said she believed that Ewanchuk knew the complainant was afraid. She emphasized their age and size differences and the fact that it was a job interview between strangers. She also noted that after each "No," Ewanchuk escalated his advances. But most crucially, she argued that the defence of "implied consent" does not exist, since consent is a "state of mind" and the girl's fear was an accepted fact.

"One 'No'' will do to put the other person on notice that there is...a problem with 'consent,'" she wrote. "Once a woman says 'No' during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal 'Yes' before he again touches her in a sexual manner. Any other interpretation of s. 273.1(2) (e) would fall prey to the rejected myth that 'No' really means 'Try harder.'"

That opinion was accepted by the Supreme Court in its unanimous ruling, and the Supreme Court declared Ewanchuk convicted instead of sending the case back for retrial in Alberta. One lawyer guesses that is something the court may have done a half-dozen times in its entire history (the court did not provide the actual figures last week). Regardless, one of Edmonton's most highly reputed defence lawyers, Brian Beresh, has taken Ewanchuk's case from Peter Royal and announced last week that he is seeking a retrial on new evidence.

In a controversial addendum to the Supreme Court's majority judgment, Madam Justice L'Heureux-Dube went further. "The case is not about consent, since none was given. It is about myths and stereotypes," she declared. She catalogued those myths according to the works of feminist authors such as Ms. MacKinnon and chastised Mr. Justice McClung by name for his "bias." She agreed with Madam Justice Fraser's "one 'No'" is enough" dictum, adding that "no lapse of time" is sufficient to justify a renewed attempt at sexual conduct and that to allow otherwise "denies women's sexual autonomy and implies that women are walking around the country in a state of constant consent to sexual activity." Significantly, she noted, "As irrational as a complainant's motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent."

Federal Justice Minister Anne McLellan applauded the ruling two weeks ago, but she has refused to speak on the issue since. Senator Anne Cools defended Mr. Justice McClung in the Senate last Thursday, saying that his 1997 Vriend gay-rights ruling, also overturned on appeal, has made him persona non grata with the gender-activism crowd. Lower court judges have no venue of appeal when Supreme Court judges act, she observed, since the Canadian Judicial Council is chaired by Supreme Court Chief Justice Antonio Lamer.

Much of the attention given to Ewanchuk focused on how the court decided to read the sexual assault law. REAL Women's Mrs. Landolt, a lawyer, grants that the Ewanchuk case would be "difficult to decide" given his unsavory behaviour and the nature of the charges, but the court's new interpretation of the sexual assault law is, she thinks, "removed from reality."

"Imagine if we were to apply these principles to other areas of life," writes neo-feminist Cathy Young in her recently published book, Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality. "If a friend nagged you into lending him your car, we would call it acquaintance carjacking. If someone talked you into going on an unwanted trip by making you feel guilty about refusing, that would be kidnapping. If a relative from out of town wanted to stay at your place and did not take repeated hints that this wasn't such a good time, that would be no different from thugs forcing their way in at gunpoint."

Calgary lawyer Brian Purdy concurs. The Ewanchuk ruling "gives a lot of power to women to call down the law on men," he says. "As Lord Acton said, 'Do not grant powers on the assumption they will not be abused.'"

Ms. Young's book portrays a culture that will eagerly employ the new power. "What if a woman is in bed with her lover and says that she just wants to talk, but her lover keeps touching and caressing her, and she finally gives in and fakes an orgasm?" The case is a real one, described in an article entitled, "When She Says No, It's Always Rape," in the Massachusetts Institute for Technology paper, the Thistle. (The "rapist" in question happened to be another woman.) Ms. Young showed it to Virginia MacKay-Smith, an assistant dean at Harvard and a member of the university's Date Rape Task Force, who told her that if a student came to her with such a complaint she would "feel no hesitation to report it to the police."

Another example was recently provided to syndicated advice columnist Ann Landers. One of Ms. Landers' correspondents had met a man in a bar, had two drinks and ended up in bed with him. Feeling cheap and guilty, she called a girlfriend the next day. "She said, 'You were raped.' I told her I didn't see it that way.'" Ms. Landers advised: "Yes, your friend is right.'"

"The end result of this," thinks Mr. Purdy, "will be a lot of young men waking up to the police at their door when they have no idea what they have done wrong."

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