National Post

Monday, March 08, 1999

She said no. Any questions?

Andrew Coyne
National Post

She said no. Much as many conservatives would like to turn the Ewanchuk decision into another casus belli against the Supreme Court, the ruling isn't really all that exceptional or significant. Nor is Justice John McClung of the Alberta Court of Appeal, whose ruling in the same case came in for severe criticism from certain members of the court, some sort of latter-day Dreyfus.

All you really need to know is that the complainant in the case explicitly refused consent to sexual activity with the accused, one Steve Ewanchuk -- not once, but three times. That the trial judge could nevertheless have found, with Judge McClung's later concurrence, that she had "implicitly consented" fully justifies the drubbing both received at the hands of the Court. Justice John Major, writing for the majority, could not have put it any clearer: "There is no defence of implied consent to sexual assault in Canadian law." So it's hard to see how either Ewanchuk or Judge McClung have been done an injustice.

Ewanchuk first. To convict someone of sexual assault, you have to prove two things: one, that the complainant did not consent to sexual touching, and two, that the accused knew, or should have known, that she did not consent. To the first, we need only know the complainant's state of mind: The presence or absence of consent is necessarily subjective. That doesn't mean whatever she says about it later must be taken as gospel. If her every word or deed at the time suggested the contrary, that can be entered as evidence -- not proof, but evidence -- that she should not be believed.

But the trial judge did believe her. Whatever apparent inconsistencies there might have been in her behaviour -- entering Ewan-chuk's trailer, agreeing to give him a neck-rub, and so on -- they did not deter the judge from finding that she had not consented in her own mind to sexual touching. To suggest nevertheless that her behaviour implied consent is to say that she did not know her own mind.

Where her behaviour might have been relevant is with regard to the second question: whether the accused knew she had not consented. Canadian law allows an accused the defence of an "honest but mistaken belief" that the complainant had consented. That is, even if she did not express consent, if he honestly believed she did, he cannot be convicted.

I say her behaviour might have been relevant in this regard -- had Ewanchuk offered this defence. But he didn't. The reason is not hard to find. As with the complainant, we are not obliged to take the accused at his word that he honestly believed she consented: There has to be some supporting evidence that would give his belief an air of reality. That's hard to square with her repeated statements of "no" or "just stop."

Even had she not been so explicit, the law says he might still be convicted, if he knew her lack of resistance was rooted in fear. Again, the facts of the case are clear: His own words to her, as they sat together alone in his trailer, his hands roaming across her body ("I had you scared, didn't I?"), put it beyond doubt that he knew she was afraid of him.

The more ambiguous case would have been one where the woman had given no clear signal either way -- neither consent nor a lack of consent -- with no obvious reason for her silence. Since the 1992 revisions to the law, in cases of sexual assault the accused must show, not only that he honestly believed he had consent, but that he took "reasonable steps" to assure himself of this. Perhaps the court will one day justify its critics, with some preposterously restrictive definition of "reasonable steps." But that's not what happened in this case.

Which brings me to Judge McClung. I have looked long and hard through Madame Justice Claire L'Heureux-Dube's minority ruling, and while it is harshly critical of Judge McClung's reasoning, I can't find a line of personal invective in it -- certainly nothing to match Judge McClung's asinine response.

It is the job of higher courts to criticize lower court rulings. It is not the job of lower courts to reply in kind. Case dismissed.

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