Ten Years After R v Ewanchuk: Confirmation That No Means No
This month marks the tenth anniversary of the Supreme Court of Canada’s (“SCC”) decision in R v Ewanchuk,  1 SCR 330. The Ewanchuk case is significant for defining the law of consent in Canada. It is also remembered due to the ensuing controversy between Justice John McClung of the Alberta Court of Appeal and Justice Claire L’Heureux-Dube of the SCC.
The complainant was a 17 year old woman who was approached by 49 year old Ewanchuk in his van while walking through the parking lot of a mall in Edmonton with her roommate. Ewanchuk asked if they would be interested in a job selling his custom wood work in malls. The next day the complainant met Ewanchuck for an interview in his van in the mall parking lot.
Although the interview was conducted in a “polite, business‑like fashion” the complainant left the van door open because she flight somewhat uncomfortable. Following the interview Ewanchuk invited the complainant to the trailer behind his van to view some of his work. She agreed but again purposefully left the trailer door open. Ewanchuk shut the trailer door and it appeared to the complainant that it was locked.
At this point the complainant testified that she was scared. Ewachuk made a series progressively closer intimate advances. Each time she said “no” he would stop but begin more aggressively moments later. Ewanchuk engaged the complainant in mutual massage and twice lied on top of her. The SCC found “any compliance by the complainant was done out of fear and the conversation that occurred between them clearly indicated that the accused knew that the complainant was afraid and certainly not a willing participant.”
Ewanchuk was acquitted at trail by relying on the defence of implied consent. The Court of Appeal upheld this decision and Justice John McClung stated “it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines.” He also described Ewanchuk’s behaviour as “less criminal than hormonal.”
There were two isssues before the SCC. This first was whether the trial judged erred in his understanding of consent in sexual assault. The second was whether the defence of implied consent exists in Canadian law.
Justice Major offered this succinct summary of the complainant’s lack of consent:
She [the complainant] stated that she immediately said “NO” every time the accused touched her sexually, and that she did nothing to encourage him [Ewanchuk]. Her evidence was accepted by the trial judge as credible and sincere. Indeed, the accused relies on the fact that he momentarily stopped his advances each time the complainant said “NO” as evidence of his good intentions. This demonstrates that he understood the complainant’s “NO’s” to mean precisely that.
Based on this information Justice Major held Ewanchuk’s persistent touching constituted sexual assault for which the trail judge ought to have found no defence. The SCC entered a conviction under s. 686(4) of the Criminal Code, RSC 1985, c C-46. The importance of this case was not lost on the SCC:
Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community’s sense of safety and justice. The law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected. At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders.
In her reasons, Justice L’Heureux-Dubé generally concurred with the reasons and disposition of Justice Major. However, she did comment specifically on remarks made by Justice McClung at the Court of Appeal. She criticized Justice McClung for pointing out that the complainant was “the mother of a six-month-old baby and that, along with her boyfriend, she shared an apartment with another couple.” Justice L’Heureux-Dubé held this statement reinforced myths that since the complainant was not a virgin or of questionable moral character she was more probable to consent to further sexual activity.
Justice L’Heureux-Dubé’s chastised the Court of Appeal finding that Ewanchuk less criminal than hormonal. She held this would this would absurdly mean “a man would be free from criminal responsibility for having non-consensual sexual activity whenever he cannot control his hormonal urges.” Her final point was to attack Justice McClung’s finding “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.” She found this analysis would mean women would be forced to both unequivocally deny consent fight their way out of a potential sexual assault.
A controversy followed the Ewanchuk decision. In response to Justice L’Heureux-Dubé’s decision, Justice McClung write a letter to the National Post stating:
The personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.
Justice L’Heureux-Dube’s husband committed suicide. Soon after, Justice McClung published an apology, stating he was unaware of this.
Ten Years After Ewanchuk
It is surprising that only ten years ago the defence of implied consent was successful at two levels of court before being extinguished by the SCC. To provide context, slightly more than two decades ago, the SCC struck down Canada’s abortion laws in R v Morgentaler,  1 SCR 30, and a few years before, the martial rape exception was repealed. Society is changing. In our judicial system, one hopes women today no longer face the myths and stereotypes about sexual assault displayed in Ewanchuk.