National Post

Friday, February 26, 1999

Women justices rebuke male judge in sex-assault case

National Post

OTTAWA - The Supreme Court's two women justices gave an unusual dressing-down yesterday to a justice of the Alberta Court of Appeal for making several bold comments about a young sex-assault victim, including that she did not present herself "in a bonnet and crinolines."

Justices Claire L'Heureux-Dubé and Beverley McLachlin, while agreeing with the rest of the court that the Edmonton teen did not consent to sex, took the additional step of writing two separate opinions so they could take on Justice John McClung.

Judge L'Heureux-Dubé issued a particularly scathing rebuke, vigorously dissecting each of several observations Judge McClung made last year when the Alberta Court of Appeal upheld the sexual assault acquittal of Steve Ewanchuk.

Judge McClung had concluded that the advances of the much older Ewanchuk, who had just met the 17-year-old woman, who was wearing shorts and a T-shirt, and offered her a job, 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."

Judge L'Heureux-Dubé, considered the court's feminist, effectively said Judge McClung failed to take sexual assault seriously.

Justice Claire L'Heureux-Dubé

"Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions," she wrote, in an opinion supported by Judge Charles Gonthier.

"It is part of the role of this 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 convicted Ewanchuk of sexually assaulting the young woman in the summer of 1994, rejecting an earlier ruling that the woman had implied consent by her behaviour, even though she repeatedly said "no" as Ewanchuk tried to initiate sex in his trailer.

The other six men judges on the bench, in an opinion written by Justice John Major, formerly of the Alberta Court of Appeal, struck down Judge McClung's decision but remained silent on his comments, which had caused an uproar among women's groups.

Judge McLachlin, although she wrote a separate opinion scolding Judge McClung, was less vehement than Judge L'Heureux-Dubé.

"I agree with Justice L'Heureux-Dubé that stereotypical assumptions lie at the heart of what went wrong in this case," wrote Judge McLachlin, who is not in the habit of allying with Judge L'Heureux-Dubé to champion women's rights.

"On appeal, the idea also surfaced that if a woman is not moderately dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law."

The last time the two women justices joined forces in a significant case involving women's rights was in 1995 when they disagreed with the seven men, who ruled that child-care costs aren't a tax-deductible business expense for self-employed women.

On the other hand, some women felt betrayed when Judge McLachlin wrote the 1991 majority opinion striking down the federal rape shield law, which protected sexual assault complainants from being questioned about their past sexual history.

Anne McLellan, the Justice Minister, also took part in the attack on Judge McClung yesterday, praising the court for "eradicating stereotypes... that may give women pause in how they think they will be understood by the courts of this country."

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