Saturday, March 13, 1999Prosecutors want sex offender jailed indefinitely
No-Means-No case: Crown seeks to have Ewanchuk declared dangerous offender
The Alberta Crown Attorney's office will attempt to have the man at the centre of a no-means-no sexual assault case declared a dangerous offender, which means he could spend the rest of his life in prison.
The Supreme Court of Canada convicted Steve Ewanchuk, 49, last month of sexually assaulting a 17-year-old woman during a job interview in 1994, overturning an Alberta Court of Appeal ruling and prompting an uncharacteristic judicial war of words.
Brian Beresh, Ewanchuk's lawyer, says he was "astonished" to receive word a few days ago that the Crown's office wants to designate Ewanchuk a dangerous offender, legislation that is normally reserved for society's most serious criminals who have shown a persistent pattern of violence.
The move may also complicate the wider public quarrel between Alberta Court of Appeal Justice John McClung and Supreme Court Justice Claire L'Heureux-Dube, who have disagreed over the interpretation of what constitutes consent. The row between the jurists has spurred a series of complaints to the Canadian Judicial Council.
"In my view, it's a clear misuse of state authority and suggests that [the Crown] is exploiting an ill-informed public sentiment about the facts of the case," said Mr. Beresh. "The prosecution's lack of good judgment in this decision is akin to that of a person hopelessly lost in a blizzard."
Under the dangerous offender legislation, a judge has the discretion to incarcerate the person indefinitely, or sentence the person to a fixed term behind bars.
In his 1998 ruling, Judge McClung described the advances of Ewanchuk, who had just met the woman, "less criminal than hormonal." He suggested they could have been rebuffed 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 Judge L'Heureux-Dube criticized her colleague in her ruling for promoting "archaic myths and stereotypes" about sexual assault. Judge McClung responded in kind, dispatching a letter to the National Post that called her remarks a "graceless slide into personal invective," and linked Judge L'Heureux-Dube's decision with Quebec's growing male suicide rate. He later apologized.
The Supreme Court of Canada also took the unusual move of convicting Ewanchuk and sending the case back for sentencing, instead of ordering a retrial. Ewanchuk has a criminal record for rape and sexual assault.
Ewanchuk was convicted of sexual assault in 1989 and of rape three times in the early 1970s. He received a 10-year jail sentence for the third conviction and, according to an interview last year, told a reporter he was so angry about the sentence he refused to seek parole. He also told the reporter he attended a program for sex offenders while in jail and has been undergoing therapy for six years.
Mr. Beresh said he is "vigorously exploring" the possibility of returning to the Supreme Court to request that they re-consider the issue of a new trial for Ewanchuk.
"Having been involved in numerous dangerous offender cases, the legislation is usually reserved for the most serious criminals who commit the most serious crimes where the general sentencing regime is not effective," Mr. Beresh said. "[Ewanchuk] is one of the most unlikely candidates for targeting because neither his personal characteristics nor his conduct fit the legislation."
Ewanchuk is "perplexed and astounded," Mr. Beresh said, particularly because the Crown had never mentioned the possibility of using the dangerous offender legislation, which is normally enacted after trial and before sentencing.
"It is very unusual not to provide notice and spring it on an accused," Mr. Beresh said.
Ewanchuk was 44 when he met the 17-year-old woman, whom he invited for a job interview in his trailer. During the interview, Ewanchuk asked the woman for a massage; she complied, massaging his shoulder briefly. He then massaged her stomach, bringing his hands up close to her breasts. She pushed him away and said, "No." He stopped, then started again, massaging her feet, inner thigh and pelvis. She wanted him to stop, but testified that she was afraid to ask. He then lay on top of the woman and ground his pelvis into hers. The woman asked Ewanchuk to stop, and he did.
To have someone declared a dangerous offender, the Crown must prove that the person has a history of repetitive violence and that the person's behavior won't be stopped by normal restraints. Expert evidence plays a prominent role in the hearing, and, by law, the Crown and the defence must each call a psychiatrist to testify about a person's likelihood to commit further crimes. The Crown may also call evidence about other violent acts the person is suspected of committing.
Since the legislation was enacted in 1977, 230 people have been declared dangerous offenders and 219 remain in prison. Among the most notorious is Paul Bernardo, who was convicted of murdering Leslie Mahaffy and Kristen French in 1995, and is serving an indeterminate sentence in prison.
Copyright © Southam Inc.