National Post

Friday, February 26, 1999

Judges clash over landmark sex-assault ruling
No definitely means no: Supreme Court judge castigated for 'graceless slide into personal invective'

Janice Tibbetts and Shawn Ohler
National Post; Southam News


Walter Tychnowicz, Edmonton Sun / Judge John McClung has delivered two controversial rulings recently.

An Alberta judge engaged in an unprecedented judicial war of words yesterday when he linked Quebec's growing male suicide rate with the written legal opinion of Supreme Court Justice Claire L'Heureux-Dube contained in a landmark decision by the high court.

In a letter to the National Post, Alberta Court of Appeal Justice John McClung castigated Judge L'Heureux-Dube, who yesterday dissected observations Judge McClung made last year in upholding the sexual assault acquittal of Edmonton man Steve Ewanchuk.

In a rare move, the Supreme Court convicted Ewanchuk yesterday of sexually assaulting the young woman in the summer of 1994, instead of sending his case back to Alberta.

Judge L'Heureux-Dube took the unusual step of writing a separate opinion, which sharply criticized Judge McClung for promoting "archaic myths and stereotypes" about sexual assaults.

Responded Judge McClung in his letter: "Madam Justice Claire L'Heureux-Dube's graceless slide into personal invective in Thursday's judgment in the Ewanchuk case allows some response."

Judge McClung added: "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. 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."

In his 1998 ruling, Judge McClung had concluded the advances of Ewanchuk, who had just met the 17-year-old woman, were "less criminal than hormonal" and perhaps would have been better dealt with by "a well-chosen expletive, a slap in the face, or, if necessary, a well-directed knee." He said the woman, who was wearing shorts and a T-shirt, "did not present herself to Ewanchuk . . . in a bonnet or crinolines."

The ruling enraged women's groups and, in yesterday's Supreme Court decision, Judge L'Heureux-Dube said it was the role of the court "to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law."

The Supreme Court's decision eliminated the blurry lines of consent in sexual-assault cases yesterday, unanimously declaring that no means no.

The nine judges quashed two rulings in the Alberta courts that the teenage victim had implied consent by her behaviour, even though she said "no" three times during her encounter with Ewanchuk.

"No defence of implied consent to sexual assault exists in Canadian law," Justice John Major said, upholding the federal government's 1992 changes to the Criminal Code that placed the onus on the initiator of sex to reasonably secure consent.

The only other legal defence for Ewanchuk, the court found, would have been if he mistakenly believed the victim consented, but the judges found no evidence to support that in light of her repeated verbal resistance.

"Common sense should dictate that, once the complainant has expressed unwillingness to engage in sexual conduct, the accused should make certain that she has truly changed her mind before proceeding with further intimacies," wrote Judge Major, the only Alberta justice on the Supreme Court.

"Continuing sexual conduct after someone has said 'no' is, at a minimum, reckless conduct which is not excusable."

The ruling garnered immediate praise from Anne McLellan, the Justice Minister, who said it should send a clear signal to lower courts across the country that Ottawa's sexual- assault laws are to be taken seriously.

"I hope it provides comfort and support to those who are victims of sexual assault to come forward and report those cases and pursue them in the courts," Ms. McLellan said in Edmonton.

At Ewanchuk's 1995 trial, the teen victim testified she entered Ewanchuk's trailer in the parking lot of an Edmonton shopping mall to talk about a part-time job selling woodworking products.

She said she started to feel afraid when Ewanchuk, who was about twice her age and size, closed, and perhaps locked, the door behind them.

Talk about the job gradually became more personal and the two ended up giving each other massages. The woman told him to stop when his hand neared her breast. She said no at least two other times as his advances continued.

The high court found that the trial judge was wrong to accept the woman's testimony that she did not want him to touch her, but then acquit Ewanchuk on the grounds that the woman's conduct raised reasonable doubt and therefore consent had been implied.

Now that Ewanchuk has been convicted, it can be reported that he was convicted of rape three times in the early 1970s and once again convicted of sexual assault in 1989. He will now be arrested and then sentenced in Alberta.

Neither Ewanchuk nor his lawyer could be reached for comment.

The Women's Legal Education and Action Fund, an intervenor in the case, applauded the Supreme Court. Carissima Mathen, a lawyer of the women's advocacy group, said the ruling makes it "crystal clear" that consent cannot be presumed.

Judge McClung, the grandson of the famed, late Alberta suffragist Nellie McClung, made another recent controversial ruling.

In his 1996 ruling on Delwin Vriend, a homosexual fired from his college teaching job, Judge McClung rejected a lower Alberta court's redrafting of Alberta's human rights act to include gay rights.

Judge McClung denounced "constitutionally hyperactive judges pronouncing [on] all our emerging laws according to their own values" and railed against "crusading . . . ideologically determined judges" who used the country's Charter of Rights to rewrite legislation.

"All I was saying in that case is that I'm a firm believer in representative democracies," Judge McClung told the National Post yesterday.

"The people make the laws and the people are expected to obey them. I don't think that judges have any particular monopoly on wisdom in this country."

Last April, the high court overturned Judge McClung's ruling in the case of Vriend and ordered the Alberta government to include protection for homosexuals in its human rights code.

HE SAID, SHE SAID

OTTAWA - Justice Claire L'Heureux-Dube of the Supreme Court issued a point-by-point rebuke yesterday to Justice John McClung of the Alberta Court of Appeal, for comments he made in a sexual-assault ruling last year in which he acquitted Steve Ewanchuk:

Judge McClung said: "It must be pointed out the complainant did not present herself [to the accused] in a bonnet and crinolines."

Judge L'Heureux-Dube countered: "These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the assault, or her sexual experience signals probable consent to further sexual activity."

Judge McClung said: "She told Ewanchuk that she was the mother of a six-month-old baby and that, along with her boyfriend, she shared an apartment with another couple."

Judge L'Heureux-Dube said: "One must wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin?"

Judge McClung said: "There was no room to suggest that Ewanchuk knew, yet disregarded, her underlying state of mind as he furthered his romantic intentions."

Judge L'Heureux-Dube said: "These were two strangers, a young 17-year-old woman attracted by a job offer trapped in a trailer with a man approximately twice her age and size. This is hardly a scenario that one would characterize as reflective of romantic 'intentions.' It was nothing more than an effort by Ewanchuk to engage the complainant sexually, not romantically."

Judge McClung said: "During each of three clumsy passes by Ewanchuk, when she said no, he promptly backed off."

Judge L'Heureux-Dube said: "The expressions used by McClung to describe the accused's sexual assault, such as 'clumsy passes,' are plainly inappropriate in that context as they minimize the importance of the accused's conduct and the reality of sexual aggression against women."

Judge McClung said: "The sum of the evidence indicates that Ewanchuk's advances to the complainant were far less criminal than hormonal."

Judge L'Heureux-Dube said: "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."

Judge McClung said: "In a less litigious age, going too far in the boyfriend's car was better dealt with on site, a well-chosen expletive, a slap in the face, or, if necessary, a well-directed knee."

Judge L'Heureux-Dube said: "According to this stereotype, women should use physical force, not resort to the courts to 'deal with' sexual assaults and it is not the perpetrator's responsibility to ascertain consent . . . but the woman's not only to express an unequivocal 'no' but also to fight her way out of such a situation."

Southam News

Related Sites

R. v. Ewanchuk
The Supreme Court decision handed down in the "no means no" sexual assault case.

Jurist Canada
The leading judicial website.

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