Tuesday, May 04, 1999Ewanchuk wants a retrial to tell his side of the story
Sexual assault decision
OTTAWA - An Alberta man at the centre of a groundbreaking decision on sexual assault, fearing he will be declared a dangerous offender, has asked the Supreme Court of Canada for a new trial so he can tell his side of the story for the first time.
Ian Scott, The Edmonton Journal / Steve Ewanchuk
Dave Chan, National Post / Justice Claire L'Heureux-Dube
Steve Ewanchuk, convicted by the high court of sexual assault in a decision that has become known as the "no-means-no" ruling, has filed an application asking the nine judges to reconsider their unusual move to convict him outright rather than sending his case back to Alberta for a retrial.
Ewanchuk, a 49-year-old Edmonton woodworker, argues in an affidavit that he deserves another chance, in part because the stakes are so high.
"I did not testify at my trial because I sincerely believed I would be found not guilty without having to testify," wrote Ewanchuk, who wants to mount a different defence now that the Supreme Court has declared there is no such thing as implied consent.
He is scheduled to be sentenced May 14 and the Alberta Crown has signalled it intends to have him declared a dangerous offender, which means he could be jailed indefinitely.
"He has become very much of a lightning rod," said his lawyer, Marvin Bloos, who argued that his client could become a scapegoat because his case has attracted intense debate.
Ewanchuk's bid in the Supreme Court further complicates a case that has a long, twisting history and has spawned several subplots, including an unprecedented quarrel in the judiciary between Justice John McClung of the Alberta Court of Appeal and Supreme Court Justice Claire L'Heureux-Dube.
Ewanchuk, who did not testify at his original trial in which he was cleared of sexually assaulting a 17-year-old girl, now wants to take the stand to tell a very different story than the one told by the young victim about the events surrounding a job interview in his trailer in an Edmonton parking lot in June, 1994.
He wants to switch to a defence known as mistaken belief in consent, which can clear an accused if it is proven he honestly believed the complainant consented to sexual advances.
"For the two hours that she was in my trailer, I honestly do not believe that she was afraid of me, and neither her actions or her words suggested she was afraid of me," wrote Ewanchuk.
The victim testified she said "no" to Ewanchuk three times as their mutual back massages progressed to his unwanted sexual touching. He counters in his affidavit that she only said no once, and he then stopped.
The Supreme Court rejected his initial defence the victim implied consent by her behaviour, declaring there is no such thing in Canadian law. His argument did not require him to take the stand.
Had he testified at his original trial, which would have been necessary to mount a mistaken belief in consent defence, he could have opened himself up to exposure about several past convictions, including three for rape in the 1970s, and one for sexual assault in the 1980s. Now that he has been convicted, his past is public knowledge.
His lawyers argue in a court submission that he deserves a retrial because the Supreme Court has now clarified the law.
Lawyers for the intervening Legal Education and Action Fund, however, contend that Ewanchuk already had his chance and his lawyers elected to take a chance on a defence that didn't exist.
"The practical effect of ordering a new trial may well cause future victims of sexual assault to think twice about reporting similar crimes," the women's lobby group argued in a court submission.
The application for a retrial is the latest twist in a case that has been embroiled in controversy since Judge McClung acquitted Ewanchuk in 1998. In his ruling he noted the victim did not present herself to the accused "in a bonnet and crinolines." She was wearing shorts and a T-shirt.
Then, two months ago, Judge McClung, stung by a dressing down given by Judge L'Heureux-Dube when the court overturned his ruling, responded in a letter to the editor of the National Post linking the "personal invective" in her decisions to the high rate of male suicide in her home province of Quebec.
The letter shocked the legal community, in which it is well known that Judge L'Heureux-Dube's husband committed suicide. Judge McClung apologized, but the judicial council is still deciding whether to launch an inquiry that could lead to his removal from the bench.
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