Ottawa Citizen

Friday 26 February 1999

No means no in sex assaults, top court rules

'Implied consent' doesn't exist, judges say

Janice Tibbetts
The Ottawa Citizen

The Supreme Court of Canada declared yesterday that there is no such thing as implied consent in sexual-assault cases, and no absolutely means no, not yes or maybe.

The nine judges, in a unanimous decision, overturned an Alberta Court of Appeal finding that a young woman had implied consent by her behaviour, even though she said "no" three times during an encounter with Steve Ewanchuk at an Edmonton shopping mall in 1994.

"No defence of implied consent to sexual assault exists in Canadian law," Justice John Major said in a ruling that upholds the federal government's 1992 changes to the Criminal Code.

The amendments, known as the "No Means No" law, placed the onus on the initiator of sex to reasonably secure consent.

The high court also made the extremely rare move of convicting Mr. Ewanchuk instead of ordering a new trial in a province where he already has been acquitted twice.

The only other legal defence for Mr. Ewanchuk, the court found, would have been if he mistakenly believed the victim consented, but the judges saw no evidence to support that in light of her repeated verbal resistance.

"Common sense should dictate that, once the complainant has expressed unwillingness to engage in sexual conduct, the accused should make certain that she has truly changed her mind (to yes) before proceeding with further intimacies," wrote Justice Major, the only Alberta judge on the court.

"Continuing sexual conduct after someone has said 'no' is, at a minimum, reckless conduct which is not excusable."

The ruling garnered immediate praise from Justice Minister Anne McLellan, who said it should sent a clear signal to lower courts across the country that Ottawa's sexual-assault laws should be taken seriously.

"I hope it provides comfort and support to those who are victims of sexual assault to come forward and report those cases and pursue them in the courts," Ms. McLellan said in Edmonton.

The case involved a petite 17-year-old woman who went to a job interview on a hot June day wearing shorts and a T-shirt. At the 1995 trial, the teen testified she entered Mr. Ewanchuk's trailer in the parking lot of an Edmonton shopping mall to talk about a part-time job selling woodworking products.

She said she started to feel afraid when Mr. Ewanchuk, who was about twice her age and size, closed, and perhaps locked, the door behind them.

Talk about the job gradually became more personal and the two ended up giving each other massages. The woman told him to stop when his hand neared one of her breasts. She said "no" at least two other times as his advances continued.

The Supreme Court found that the trial judge was wrong to accept the woman's testimony that she did not want him to touch her, but to then acquit Mr. Ewanchuk on the grounds that the woman's conduct raised reasonable doubt and therefore consent had been implied.

Now that Mr. Ewanchuk has been convicted, it can now be reported for the first time that he was convicted of rape three times in the early 1970s and once again convicted of sexual assault in 1989. He will now be arrested and then sentenced in Alberta.

Neither Mr. Ewanchuk nor his lawyer could be reached for comment.

The case grabbed national attention, and sparked anger from women's groups, when Justice John McClung of the Alberta Court of Appeal upheld an earlier ruling and went on to say that the woman did not present herself to the accused "in a bonnet and crinolines."

He also concluded that Mr. Ewanchuk's "clumsy passes" were "far less criminal than hormonal" and perhaps would have been better dealt with by "a well-chosen expletive, a slap in the face, or, if necessary, a well-directed knee."

The majority judgment of the Supreme Court makes no mention of the comments, but the two women justices, Claire L'Heureux-Dube and Beverley McLachlin, wrote separate but concurring opinions in which they issued a strong rebuke.

"This case is not about consent, since none was given," said Justice L'Heureux Dube, in an opinion backed by Justice Charles Gonthier.

"It is about myths and stereotypes ... It is part of the role of the court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assault but also ignores the law."

The Women's Legal Education and Action Fund, an intervenor in the case, applauded the Supreme Court.

Carissima Mathen, a lawyer of the women's advocacy group, said the ruling makes it "crystal clear" that consent cannot be presumed.

Copyright 1999 Ottawa Citizen