February 26, 1999

Female justices slam sexist myths in ruling

Lower court decision based on stereotypes

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - Once again, the two female justices on the country's top court have written zinger side-judgments in a case where gender is at the core.

In a succinct one-paragraph decision, Justice Beverly McLachlin concurred with the main ruling but went on to denounce the stereotypical views of sex assault complainants which, she said, ``lie at the heart of what went wrong in this case.'' She said those assumptions ``no longer find a place in Canadian law.''

But it fell to Justice Claire L'Heureux-Dubé to express the moral outrage felt by many upon reading the decision of an Alberta appeals court judge in a 1994 sexual assault case, in which carpenter Steve Brian Ewanchuk, 49, was acquitted of sexually assaulting a 17-year-old girl during a job interview.

One high court judge, Justice Charles Gonthier, concurred with L'Heureux-Dubé's reasons, which went much further than those of the six other male judges on the high court.

In a stinging review of evidence of the ``ordeal'' the 17-year-old complainant went through, L'Heureux-Dubé all but accused Alberta appeals court Justice John McClung and the trial judge Ken Moore of being sexist.

``It is difficult to understand how the question of implied consent even arose,'' wrote L'Heureux-Dubé.

``This case is not about consent, since none was given. It is about myths and stereotypes.''

The stereotypes, she said, were the old saws that women really mean `yes' when they say `no', that a woman could successfully resist a rapist if she wished to, that women deserve to be raped on account of their conduct, dress and demeanour.

The damage was compounded by McClung's comments that the girl ``didn't present herself in a `bonnet and crinolines,' as well as noting that she was the mother of a 6-month-old, and shared an apartment with her boyfriend and another couple.''

L'Heureux-Dubé said the implication is that a girl really does not mean `no' and ``even if she does, her refusal cannot be taken as seriously as if she were a girl of `good' moral character.''

She denounces McClung for calling Ewanchuk's action ``three clumsy passes,'' calling such a characterization ``plainly inappropriate'' because it minimizes ``the importance of the accused's conduct and the reality of sexual aggression against women.''

As for McClung's comments that Ewanchuk's passes were ``far less criminal than hormonal,'' L'Heureux-Dubé says ``according to this analysis, a man would be free from criminal responsibility for having non-consensual sexual activity whenever he cannot control his hormonal urges.''

L'Heureux-Dubé has often been nicknamed ``the great dissenter,'' because of frequent and lengthy dissenting opinions.

She is considered the most progressive judge on social questions but a hardliner when it comes to criminal justice issues.

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