Globe and Mail

Spotlight to shift to Ewanchuk judge

Sentencing for sexual assault faces scrutiny amid fallout from Supreme Court ruling

Wednesday, March 3, 1999
Jill Mahoney
Alberta Bureau

Edmonton -- The judge who must sentence the man convicted of sexual assault by the Supreme Court of Canada last week will be subjected to intense scrutiny given the current controversy and because he acquitted him in the first place, legal experts say.

"In this context, I would think that he would be under great pressure," said Peter Rosenthal, a lawyer and adjunct law professor at the University of Toronto.

While it is not uncustomary for overturned acquittals to be sent back to the trial judge for sentencing, the circumstances surrounding this case are unprecedented on several levels.

On Thursday, the Supreme Court of Canada, which unanimously overturned Steve Ewanchuk's acquittal and entered a conviction, ruled that the defence of implied consent does not exist. Usually when the Supreme Court clarifies the law, it orders new trials.

Mr. Ewanchuk's new lawyer, Brian Beresh, plans to take the rare step of asking the Supreme Court to reconsider its decision, recognize new evidence, which has not been revealed, and order another trial.

After the Supreme Court overturned his decision, Mr. Justice John McClung of the Alberta Court of Appeal wrote a public letter to the editor criticizing Madam Justice Claire L'Heureux-Dubé. The comments shocked the legal community and provoked several formal complaints asking for Judge McClung's dismissal.

Then on Monday, Judge McClung issued an apology for his "overwhelming error."

The result has been that the case, which is not unusual as sexual-assault lawsuits go, created a national controversy and received an extraordinary amount of attention. As a result, the sentence handed down by Mr. Justice John Moore of the Court of Queen's Bench will be keenly dissected, said Hersh Wolch, a criminal lawyer who practises in Calgary and Winnipeg.

"Whatever he decides, he's going to be criticized. It doesn't matter, either he's going to be called too lenient or too harsh or both," Mr. Wolch said.

During the 1995 trial, Judge Moore accepted the argument that the 17-year-old victim implied consent to Mr. Ewanchuk's sexual advances, even though she said no three times. The Court of Appeal, which rendered its decision a year ago, agreed. Last week, the Supreme Court said no such defence exists in law.

"I think it's rather odd, really. You sort of say, 'The judge didn't know what the law was, here's the law, we substitute a conviction and he knew more about this case than we did, so we'll send it back for sentencing,' " said Don Stuart, a law professor at Queen's University, who strongly believes the Supreme Court should have ordered a new trial in this case.

When he sentences Mr. Ewanchuk, Judge Moore must take into account his previous criminal record. Mr. Ewanchuk, who operates a woodworking business, was convicted of rape three times in the 1970s and spent 10 years in prison for one of the incidents. He was also convicted of sexual assault in 1989. A sentencing date has not been set.

"That history is a very serious history and I would think it would be a fairly substantial sentence," Prof. Rosenthal said.

Mr. Ewanchuk's lawyer may be justified in arguing that the attention his case received because of Judge McClung's letter should mitigate the sentence, said Bruce Elman, a law professor at the University of Alberta.

"One factor is, has the man suffered some degree of penalty merely by the attention drawn to the case, publicity of his name, et cetera?" Prof. Elman said.

One legal observer, who asked not to be named, wonders whether Mr. Ewanchuk will go to jail because of Judge McClung's strongly written judgment, which acquitted him in part because the victim was not wearing a "bonnet and crinolines."

"Justice McClung forced them, by the way he wrote his judgment, to send a very strong message, and part of that message was to substitute a conviction for an acquittal," said the observer, who believes the Supreme Court would have ordered a new trial if the Court of Appeal decision was not controversial.

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