Globe and Mail

A touch is just a touch

The definition of sexual assault needs refining

Friday, February 26, 1999

Yesterday, the Supreme Court of Canada made it plain: No means no, regardless of how ambiguously or tentatively the message is delivered. But is unwanted sexual touching enough to constitute sexual assault? That is the question that yesterday's decision begs.

Steven Brian Ewanchuk was charged with sexual assault for trying to get intimate with a 17-year-old female job applicant after they had indulged in consensual body massaging in the back of his trailer on a hot summer day several years ago at the Heritage Mall in Edmonton. The defendant argued successfully at his first trial that he had the "implied consent" of the complainant and that every time she said "no," he halted his sexual advances. There was no evidence of sexual intercourse, the use or threat of violence or that he confined the complainant against her will.

The case went to the Alberta Court of Appeal, which upheld Mr. Ewanchuk's acquittal in a 2-1 decision. Representing the majority view, Mr. Justice J. A. McClung argued that "the onus is not on the accused to prove implied consent. The onus is on the Crown to prove beyond a reasonable doubt that there was an absence of consent." In her dissenting opinion, Madam Justice C. J. A. Fraser argued that consent must be "real," and that it is wrong in law to assume that a woman gives her "implied" consent to sexual activity "unless and until she overtly signals her non-consent."

In making its ruling, the Supreme Court has determined that there is no such defence as "implied consent" in Canadian law. "Continuing sexual contact after someone has said 'No' is at minimum, reckless conduct which is not excusable," Mr. Justice John Major wrote. "The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to 'test the waters.' "

Fair enough, though the art and nature of seduction would say otherwise. But does the punishment fit the crime? The Criminal Code defines sexual assault as touching without the consent of the complainant. That covers a vast range of activity, from accidentally brushing against a person's breasts or genitals to forced penetration. The Criminal Code does allow the police and prosecutors some discretion in that the accused can be charged under an indictable offence, which carries a sentence of up to 10 years in prison, or under a summary offence, which has a much lesser sentence of up to 18 months.

But discretion, which is said to be the soul of justice, worked against Mr. Ewanchuk. He was charged with an indictable offence and is almost certainly heading for a lengthy prison term.

There is a real problem of proportion here. Unwanted sexual touching should be an offence that is separate from sexual assault, and that is a summary, rather than an indictable, offence. There is not enough refinement in the law.

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