A sex act becomes a criminal act the moment someone objects to it, the Supreme Court of Canada ruled yesterday.
In overturning the sexual-assault acquittal of an Alberta man, the court said that the very first time a 17-year-old woman said "no" to Steve Brian Ewanchuk's advances, it should have been the final word.
"The complainant either consented or not," the court said. "There is no third option. There is no defence of implied consent to sexual assault in Canadian law."
Substituting a conviction in place of Mr. Ewanchuk's acquittal, the court sent what has become known as "the bonnets and crinolines case" back for sentencing.
The case began on June 2, 1994, when Mr. Ewanchuk aggressively fondled the complainant in a trailer parked outside Edmonton's Heritage Shopping Mall. The assault took place shortly after the two had discussed the possibility of the complainant starting work for Mr. Ewanchuk.
The woodworker then commenced a series of escalating sexual advances. Each time his victim objected to his touching her, Mr. Ewanchuk told her not to be afraid. Then, he began again.
The complainant testified at his trial that she didn't resist more actively because she feared it might egg Mr. Ewanchuk on to violence.
In upholding his acquittal, the Alberta Court of Appeal characterized Mr. Ewanchuk's behaviour as an expression of "romantic attentions." It noted archly that the complainant "did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines."
Some of the the Supreme Court judges had sharp words yesterday for those who persist in clinging to such outdated stereotypes.
In concurring decisions, three of the judges were critical of anyone -- including judges -- who believes that a woman is available for sex simply because of the way she dresses or carries herself.
"This case is not about consent, since none was given," said Madam Justice Claire L'Heureux-Dubé and Mr. Justice Charles Gonthier. "It is about myths and stereotypes."
They said the trial judge and appeal majority in the Ewanchuk case erred in their belief that by rejecting an advance a woman "is really saying 'yes,' 'try again', or 'persuade me.' "
Judge L'Heureux-Dubé was especially critical of the "bonnets and crinolines" comment, as well as remarks from the appeal court about the complainant having a six-month-old baby and living with her boyfriend and another couple.
"The majority of the Court of Appeal relied on inappropriate myths and stereotypes," she wrote. "Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions."
In its decision, the court said the actual thoughts that went through the mind of a complainant are what determines whether a sexual assault has taken place -- not what her accused attacker may speculate she was thinking.
"A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake in law and provides no defence," Mr. Justice Jack Major wrote for the court. "An accused cannot say that he thought 'no' meant 'yes.' "
The court said that the fear a woman may have of being sexually assaulted does not even have to be "reasonable" in the circumstances. Her fear alone negates any possibility of her having consented to sexual activity.
Once the offence has been established in court as having occurred, the the Supreme Court said, it is still open to a defendant to show that he honestly believed a complainant had consented.
However, in order to do so, he must show that he believed she actually communicated her consent.
The judge in the Ewanchuk trial actually found that the complainant was credible. However, the judge also felt her actions could be construed as implying consent.
The the Supreme Court said it is particularly reckless and inexcusable for someone to continue to reinitiate sexual contact after being rejected.
"Common sense should dictate that once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies," it said.
Excerpts from the court's decision:
"The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts, but sexual assault is not one of them."
"The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant's fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated."
"In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant in her own mind wanted him to touch her, but did not express that desire, is not a defence."
Steve Brian Ewanchuk was personable and businesslike when he accosted two women in the parking lot of an Edmonton mall to ask whether they were interested in working for him.
Having enticed one of them into his trailer and closed the door, however, the subject turned to sex.
The 17-year-old woman later testified at Mr. Ewanchuk's sexual-assault trial that although she felt frightened, she complied with a request to massage his aching shoulders.
Shortly afterward, she said, Mr. Ewanchuk tried to touch her breasts. The woman said "no," and pushed him away.
Mr. Ewanchuk readily complied. He tried to reassure her that he was "a good guy." But he was soon touching and grinding his pelvis into her again, prompting the complainant to say "no" three more times.
On each occasion, Mr. Ewanchuk stopped what he was doing and spoke gently in an attempt to elicit trust.
The woman's fourth and final protest came after Mr. Ewanchuk took out his penis and lay on top of her. Once again, Mr. Ewanchuk desisted. This time, he gave her $100 which he said was for the massage. The woman left the trailer, went home feeling emotionally distraught, and called the police.
Mr. Ewanchuk maintained at his trial that since the complainant failed to physically resist and even agreed to massage his back -- and since he stopped each time she asked him to -- it constituted a consensual encounter.
His trial judge agreed. So did the Alberta Court of Appeal. But yesterday, the the Supreme Court of Canada did not. Staff
Once again, the country's top court is being asked to reaffirm that "no means no".
But as it attempts this week to define the blurry boundaries of what constitutes legitimate consent to sexual activity, the Supreme Court of Canada may find itself as preoccupied with the controversial comments of an Alberta judge.
In upholding the acquittal of Steve Brian Ewanchuk, Mr. Justice John McClung of the Alberta Court of Appeal felt it necessary to refer to the attire -- shorts and a T-shirt -- of the 17-year-old young woman who claimed she was sexually assaulted during a job interview.
"It must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines," Judge McClung wrote in February.
In his ruling the judge quickly added he did not intend to denigrate the young woman or lessen her legal protections.
Judge McClung concluded that the advances of the much older Mr. Ewanchuk, who had just met the young woman in a mall parking lot and offered her a part-time job, were "far less criminal than hormonal."
"In a less litigious age, going too far in the boyfriend's car was better dealt with on site -- a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee," the judge wrote.
"What this accused tried to initiate hardly qualifies him for the lasting stigma of a conviction for sexual assault and Alberta's current bullet-train removal to the penitentiary for prolonged shrift."
The outspoken Judge McClung's comments outraged women's groups and the Alberta government appealed the ruling to the Supreme Court, which itself has been deeply split along gender lines in several recent sexual assault cases.
Although the appeal, to be heard tomorrow, will largely focus on the legal meaning of consent in sexual assault cases, at least one of the groups intervening chastises Judge McClung for his remarks.
One of the groups, the Women's Legal Education and Action Fund (LEAF), in its written brief says comments such as Judge McClung's perpetuate "groundless myths and stereotypes" about women, men and sexual activity.
"Despite efforts by (the Supreme Court) and Parliament to define consent in a way that respects women as persons with full legal rights, some lower courts in Canada have employed notions on consent which perpetuate the attitudes that deny women's equal right to bodily integrity and human dignity."
This will not be the Supreme Court's first tangle with Judge McClung and his choice of language.
Earlier this year, in unanimously adding sexual orientation to Alberta's human rights law, the top court took on Judge McClung's 23-page manifesto against "crusading … ideologically determined … constitutionally hyperactive judges."
"We cannot look on with indifference and allow the superior courts of this country to descend into collegial bodies that meet regularly to promulgate 'desirable' legislation," Judge McClung had written.
The Supreme Court, however, countered that judicial activism under the Charter of Rights and Freedoms, far from being undemocratic, actually "enhances the democratic process."
Text of the decision in R. v. Ewanchuk
The facts in the 'no means no' case (National Post)
Controversy over Mr. Justice John McClung of the Alberta Court of Appeal attack on Supreme Court Justice Madame L'Heureux-Dubé (Globe and Mail)
The National Post and the Globe and Mail duke it out -- finally it is mens rea to the rescue as McClung denies he knew the judge's husband killed himself.
Assaulting the Law National Post opinion piece
Attacker awaiting sentence National Post report
Judges clash over landmark sex-assault ruling