National Post

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Wednesday, May 26, 1999

Top court won't reopen 'no means no' sex assault case
No reasons given

Marina Jimenez
National Post

The Supreme Court of Canada will not reopen the controversial sexual assault case of an Alberta man, who had asked for a chance to tell his side of the story in what has become known as the "no means no" case.

The court's dismissal yesterday of Steve Ewanchuk's application for a rehearing of his appeal means he will now face a dangerous offender hearing, which could result in an indefinite jail term.

The country's top court overturned an Alberta Court of Appeal ruling earlier this year, and convicted Ewanchuk of sexually assaulting a 17-year-old woman during a 1994 job interview.

"I'm very disappointed with the result of the application as the grounds were very clear and I'm particularly disappointed that no reasons were given for the dismissal," said Brian Beresh, Ewanchuk's lawyer, referring to the fact that the court did not offer reasons for its decision.

Mr. Beresh said he will defend Ewanchuk, a 49-year-old Edmonton carpenter, at his dangerous offender hearing that is scheduled to begin later this spring in Edmonton.

"This is the first time in history that someone has faced a dangerous offender hearing without ever being convicted at trial and that is significant," he said.

Ewanchuk, who did not testify at his original trial, argued in an affidavit to the court that he relied on a defence of implied consent, meaning he believed the woman consented to his sexual advances. The Supreme Court of Canada ruled that there is no such thing as implied consent in Canadian law.

Ewanchuk asked the woman for a massage, which rapidly progressed to his sexual advances.

The woman later testified she did not consent to the sexual touching. In his affidavit, Ewanchuk said that he wanted to change to a defence known as mistaken belief in consent, meaning that he honestly believed the complainant consented to his 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," he wrote.

The case prompted an uncharacteristic war of words between Mr. Justice John McClung of Alberta's Court of Appeal and Supreme Court Justice Claire L'Heureux-Dube, who differed in their interpretation of consent.

Ewanchuk, who was convicted of rape three times in the early 1970s and of sexual assault in 1989, is out on bail but was not available for comment yesterday.

In a dangerous offender hearing, the judge has the discretion to incarcerate the person indefinitely.

The legislation is normally reserved for society's most serious criminals who have shown a persistent pattern of violence. The Crown must show that the person has a history of violence and that their behaviour won't be stopped by normal restraints.

"Because the stakes are so high, in light of the Crown's application for a dangerous offender hearing, we felt that it was very important to put as much information before the Supreme Court to see if they would reconsider their position," said Marvin Bloos, who worked with Mr. Beresh on the case.

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