No mans no, Supreme Court rules
Judges convict man of sex assault, reject idea of 'implied consent'
Friday, February 26, 1999
Justice Reporter, The Globe and Mail
A sex act becomes a criminal act the moment someone objects to it, the Supreme Court of Canada ruled yesterday.
In overturning the sexual-assault acquittal of an Alberta man, the court said that the very first time a 17-year-old woman said "no" to Steve Brian Ewanchuk's advances, it should have been the final word.
"The complainant either consented or not," the court said. "There is no third option. There is no defence of implied consent to sexual assault in Canadian law."
Substituting a conviction in place of Mr. Ewanchuk's acquittal, the court sent what has become known as "the bonnets and crinolines case" back for sentencing.
The case began on June 2, 1994, when Mr. Ewanchuk aggressively fondled the complainant in a trailer parked outside Edmonton's Heritage Shopping Mall. The assault took place shortly after the two had discussed the possibility of the complainant starting work for Mr. Ewanchuk.
The woodworker then commenced a series of escalating sexual advances. Each time his victim objected to his touching her, Mr. Ewanchuk told her not to be afraid. Then, he began again.
The complainant testified at his trial that she didn't resist more actively because she feared it might egg Mr. Ewanchuk on to violence.
In upholding his acquittal, the Alberta Court of Appeal characterized Mr. Ewanchuk's behaviour as an expression of "romantic attentions." It noted archly that the complainant "did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines."
Some of the Supreme Court judges had sharp words yesterday for those who persist in clinging to such outdated stereotypes.
In concurring decisions, three of the judges were critical of anyone -- including judges -- who believes that a woman is available for sex simply because of the way she dresses or carries herself.
"This case is not about consent, since none was given," said Madam Justice Claire L'Heureux-Dubé and Mr. Justice Charles Gonthier. "It is about myths and stereotypes."
They said the trial judge and appeal majority in the Ewanchuk case erred in their belief that by rejecting an advance a woman "is really saying 'yes,' 'try again', or 'persuade me.' "
Judge L'Heureux-Dubé was especially critical of the "bonnets and crinolines" comment, as well as remarks from the appeal court about the complainant having a six-month-old baby and living with her boyfriend and another couple.
"The majority of the Court of Appeal relied on inappropriate myths and stereotypes," she wrote. "Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions."
In its decision, the court said the actual thoughts that went through the mind of a complainant are what determines whether a sexual assault has taken place -- not what her accused attacker may speculate she was thinking.
"A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake in law and provides no defence," Mr. Justice Jack Major wrote for the court. "An accused cannot say that he thought 'no' meant 'yes.' "
The court said that the fear a woman may have of being sexually assaulted does not even have to be "reasonable" in the circumstances. Her fear alone negates any possibility of her having consented to sexual activity.
Once the offence has been established in court as having occurred, the Supreme Court said, it is still open to a defendant to show that he honestly believed a complainant had consented.
However, in order to do so, he must show that he believed she actually communicated her consent.
The judge in the Ewanchuk trial actually found that the complainant was credible. However, the judge also felt her actions could be construed as implying consent.
The Supreme Court said it is particularly reckless and inexcusable for someone to continue to reinitiate sexual contact after being rejected.
"Common sense should dictate that once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies," it said.
Excerpts from the court's decision:
"The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts, but sexual assault is not one of them."
. . .
"The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant's fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated."
. . .
"In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant in her own mind wanted him to touch her, but did not express that desire, is not a defence."
FACTS OF THE CASE
Steve Brian Ewanchuk was personable and businesslike when he accosted two women in the parking lot of an Edmonton mall to ask whether they were interested in working for him.
Having enticed one of them into his trailer and closed the door, however, the subject turned to sex.
The 17-year-old woman later testified at Mr. Ewanchuk's sexual-assault trial that although she felt frightened, she complied with a request to massage his aching shoulders.
Shortly afterward, she said, Mr. Ewanchuk tried to touch her breasts. The woman said "no," and pushed him away.
Mr. Ewanchuk readily complied. He tried to reassure her that he was "a good guy." But he was soon touching and grinding his pelvis into her again, prompting the complainant to say "no" three more times.
On each occasion, Mr. Ewanchuk stopped what he was doing and spoke gently in an attempt to elicit trust.
The woman's fourth and final protest came after Mr. Ewanchuk took out his penis and lay on top of her. Once again, Mr. Ewanchuk desisted. This time, he gave her $100 which he said was for the massage. The woman left the trailer, went home feeling emotionally distraught, and called the police.
Mr. Ewanchuk maintained at his trial that since the complainant failed to physically resist and even agreed to massage his back -- and since he stopped each time she asked him to -- it constituted a consensual encounter.
His trial judge agreed. So did the Alberta Court of Appeal. But yesterday, the Supreme Court of Canada did not.
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