London Free Press

Friday, March 5, 1999

It's L'Heureux-Dube's turn to apologize

By RORY LEISHMAN
London Free Press

Now that Justice John McClung of the Alberta Court of Appeal has abjectly apologized for his shameful personal attack on Justice Claire L'Heureux-Dube of the Supreme Court of Canada, the onus is on her to reciprocate. After all, it was she who instigated this unseemly judicial slanging match with an injudicious attack on McClung in her reasons for judgment in the case of Steve Ewanchuk.

The accused in this instance was charged with sexual assault for indecently touching and exposing himself to a 17-year-old woman, after she twice said "No" to his sexual advances. Nonetheless, the trial judge, McClung and a male colleague on the Alberta Court of Appeal all agreed Ewanchuk should be acquitted. How can that be?

Consider the specific, agreed-upon facts of this case. The complainant was provocatively dressed in shorts and a T-shirt when she spent 21/2 hours in a trailer with the accused. In the words of the trial judge, she told him that, "she was an open, friendly, and affectionate person, and that she often liked to touch people."

At Ewanchuk's request, she gave him a massage and then agreed to have him massage her. "They touched each other; they hugged," summarized the trial judge. "They were sitting on the floor of the trailer and they were lying on the floor of the trailer."

Soon, the woman was in serious trouble. Ewanchuk's hands wandered close to her breasts. She said "No" and he immediately stopped, but she did not ask to leave the trailer. While they were lying on the floor, he straddled her.

Again she told him, "No," and he stopped.

After more groping, he indecently exposed himself to her. A third time, she said, "No" and for the first time, she now also told him she would like to leave the trailer. Immediately, Ewanchuk opened the door, gave her $100 for the massage and she left.

The complainant says she did not leave the trailer after her first "No," because she was afraid if Ewanchuk knew she was afraid of him, he would rape her. "Like a good actor," the trial judge noted, "she projected an outer image that did not reflect her inner self. She did not communicate by words, gestures or facial expressions that she was 'frozen' by fear of force. She did not communicate that she was frozen to the spot, and that fear prevented her from getting up off the floor and walking out of the trailer."

These facts show the complainant did not consent to Ewanchuk's gross sexual advances, but that's not enough for a sexual assault conviction. In a 1995 case, R. v. Park, L'Heureux-Dube observed there must also be "proof of the accused's awareness of, or recklessness or wilful blindness to, this absence of consent" by the complainant.

Should Ewanchuk have been convicted on the basis of the law and the evidence in this case? L'Heureux-Dube thinks so. She maintains "there is, on the record, no evidence that would give an air of reality to an honest belief in consent for any of the sexual activity which took place in this case."

In marked contrast, McClung argues the complainant sent mixed signals to Ewanchuk, by initially saying "No," without indicating in any way she was upset and wished to leave the trailer. In McClung's opinion, "the sum of the evidence indicates that Ewanchuk's advances to the complainant were far less criminal than hormonal."

In response, L'Heureux-Dube wrote: "According to this analysis, a man would be free from criminal responsibility for having non-consensual sexual activity whenever he cannot control his hormonal urges." That's neither a fair nor reasonable criticism. It's a travesty of

McClung's argument.

"This case is not about consent, since none was given," L'Heureux-Dube concluded. "It is about myths and stereotypes, which have been identified by many authors." As an example, she cited C. A. MacKinnon, author of Toward a Feminist Theory of the State (1989).

In this book, MacKinnon wrote: "Compare victims' reports of rape with women's reports of sex. They look a lot alike . . . The major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one cannot get anyone to see anything wrong with it."

What does it say about the bias of a judge who would cite a male-bashing, feminist fanatic like MacKinnon as an authority?

Charles Gonthier and Beverley McLachlin of the Supreme Court endorsed L'Heureux-Dube's vituperative judgment in Ewanchuk. All three judges owe McClung a handsome apology.


Write Rory at The London Free Press, P.O. Box 2280, London, Ont. N6A 4G1 or fax 519-667-4528 or E-mail.-->
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