National Post

Monday, March 01, 1999

Assaulting the law

National Post

Distracted by the crotchety back-and-forth between Supreme Court Justice Claire L'Heureux-Dube, author of the so-called "no means no" decision released last week, and Mr. Justice John McClung, whose appeal court judgment it overruled, few have bothered to examine the Ewanchuk ruling itself. Although Judge McClung violated judicial etiquette in castigating Judge L'Heureux-Dube's concurring opinion, she was equally out of order in disingenuously lifting Judge McClung's words out of context and abusing her position to launch a sanctimonious attack against the Alberta judge

Supreme Court decisions are notoriously long-winded and confusing as it is. There is no need to add ad hominem attacks to the contorted legalese.

As it happens, the Supreme Court of Canada's unanimous ruling in R. v. Ewanchuk is a classic example of such ideologically twisted logic. While supplanting the criminal law's historic insistence on individual responsibility with a feminist indictment of an entire sex, the Court refused to admit that it was departing in any way from established legal principle. Only slightly less unusual was the Court's decision to enter a conviction instead of following normal procedure and sending the accused back for a new trial.

As the Court properly noted, a conviction for sexual assault requires two essential elements: (a) that the accused committed the act of unwanted sexual touching; and (b) that the accused intended "to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched."

There is little dispute that unwanted groping took place. But did Ewanchuk have reasonable grounds for believing the complainant had consented to his sexual advances? In the past, even feminists agreed that only those accused who actually intended harm from their wrongful acts were guilty. And Ewanchuk might well have been convicted by these traditional tests.

In actually convicting Ewanchuk, however, the Court both affirmed and denied a defence based on a mistaken belief in a woman's consent. It says an accused may introduce evidence of his honest but mistaken belief in this consent. But it then dismisses all the actual or likely grounds for this belief -- so that the defence becomes a chimera. An accused, the Court suggests, cannot show the complainant "implied" her consent by submitting to his advances or even throwing herself upon him. She must give explicit verbal consent -- "yes" -- or be held to be saying "no." (This might pose a problem if either party is deaf.)

When a woman actually says "no," of course, that is a clear sign she is refusing consent. So her actions would have to give unmistakable signs of a change of mind for any defence based on consent to be valid. But such actions sometimes occur in human life, and judicial reasoning that dogmatically dismisses them as "myths" or "stereotypes," as if they never occurred, is criminalizing seduction rather than punishing rape.

And that is exactly what the Court does. It accords zero weight to any non-verbal consent that the complainant may give. Not only does this deny the real-life experiences of many now-respectable couples; it criminalizes the plot lines of half the romantic novels aimed at the woman reader (another "myth" according to Judge L'Heureux-Dube); and it weakens the anger decent people feel for serious sexual assault. It will, inevitably, lead in time to wrongful convictions.

If Parliament had meant to say that sexual assault was an absolute liability offence, it would have clearly spelled this out in legislation. Section 265(3) of the Criminal Code lists a series of conditions -- including submission by reason of force, fear, threats, fraud or the exercise of authority -- under which the law will assert an absence of consent in assault cases, in spite of the complainant's apparent consent or participation. And section 273.2(b) prevents an accused from raising the defence of mistaken belief if he did not take "reasonable steps" to procure the complainant's consent.

These are reasonable limitations on a defence of implied consent, but they do not abolish it entirely. The legislature was not then prepared to subscribe to the Court's radical feminism, and it should now correct it.

Copyright Southam Inc.