National Post

Monday, March 01, 1999

Courtship in monosyllables
Poor manners distract us from the high court's sophistry

Lorne Gunter
National Post

It's a shame Mr. Justice John "Buzz" McClung of the Alberta Court of Appeal chose to respond in such a boorish fashion to the Supreme Court's reversal of a decision he wrote in a rape case last year. By suggesting that Madame Justice Claire L'Heureux-Dube's judicial feminism has led a disproportionate number of Quebec men to commit suicide, McClung demonstrated a lack of manners and good sense, though he probably did not know that L'Heureux-Dube's husband took his own life more than 20 years ago.

By replying in such an undignified manner, McClung has damaged his own reputation, ensured that no one remembers his original point, and deflected attention from yet another piece of legal sophistry from the high court.

In his now notorious letter to the National Post last Friday, McClung rightly accused L'Heureux-Dube of a "graceless slide into personal invective." In her ruling in the case of Steve Ewanchuk, an Edmonton woodworker who three times tried to force himself on a young woman he was interviewing for a job, L'Heureux-Dube's tone was more than condescending. In terms that were unusually personal for a legal judgment, she questioned not only McClung's finding of fact, but his intellectual ability to draw the proper conclusions (i.e. her conclusions).

Yet whatever legitimate complaint McClung may have had was buried in the storm of protests his own invective aroused.

Also buried in the controversy is proof that, yet again, the Supreme Court has swallowed whole feminist definitions of sex and rape. In her rebuke of McClung, L'Heureux-Dube cites comparatively few legal precedents, aside from those she herself has earlier written. Instead, she relies heavily on such sources as Catharine MacKinnon's Toward a Feminist Theory of the State. MacKinnon is an American law professor who argues that almost all heterosexual sex is rape.

Armed with this stack of dubious bedside reading, L'Heureux-Dube contends that the determination of consent in a rape case "is a matter of the state of mind of the complainant." No matter that the complainant may have given every verbal and physical indication of her consent. If, in her mind, she was frightened or uncertain when she said "yes," she cannot be said to have freely consented. At best, her partner might be guilty of "honest but mistaken belief," but he is still guilty.

This has been dubbed the "no means no" case. It might just as well be nicknamed the "yes means no" case.

For feminists, sex must be as black and white as contract law and probably as much fun. The male (the term "man" isn't clinical enough to express the mindset involved) must have in his possession a signed consent form from the female before proceeding in a respectful and fully protected manner, in a place and at a time of prior mutual consent.

That's not sex, it's surgery.

Throughout her discourse, L'Heureux-Dube disparages myths about rape that she asserts are still widely held by men. Yet her one-sided definition of consent, which she freely admits is "an entirely subjective test," is itself based on several other myths: Women are never devious in affairs of the heart, nor even of two minds. They never mean "maybe." And men are nothing but walking hormone rockets always frantic to launch.

Not only does the court's ruling establish a definition of consent with the potential to make the complainant the principal determiner of fact, and provide the defendant little or no defence, in Ewanchuk's case, the ruling may have denied him a common protection of his right to a fair trial.

Typically, especially in criminal cases, when the Supreme Court overrides a lower court decision, it clarifies the meaning of the law in question, then returns the matter to the lower court for a rehearing or retrial.This convention is an acknowledgement by the high court that while it may be last, it isn't always right. Should new issues arise at the retrial, the accused retains the right to appeal the outcome yet again.

For this reason, the court almost never convicts or acquits a criminal defendant. Yet it did in Ewanchuk's case. And it is difficult to shake the impression that the Supreme Court tread on due process in its blind rush to castigate McClung.

On the facts, Ewanchuk appears guilty, and the Alberta Court of Appeal seems wrong for acquitting him. McClung is surely wrong for his bizarre comments. But neither excuse the bad law and twisted precedent the Supreme Court made in this case.

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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