R. V. Ewanchuk
   HOME

TheInfoList



OR:

''R v Ewanchuk'',
999 999 or triple nine most often refers to: * 999 (emergency telephone number), a telephone number for the emergency services in several countries * 999 (number), an integer * AD 999, a year * 999 BC, a year Media Books * 999 (anthology), ''99 ...
1 SCR 330 is a leading
Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
case concerning the defence of consent to a charge of sexual assault. The Court held that there was no defence of
implied consent Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). For examp ...
. The case is also notable for the controversy that arose between Justice John McClung and Justice
Claire L'Heureux-Dubé Claire L'Heureux-Dubé (born September 7, 1927) is a retired Canadian judge who served as a puisne justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position, aft ...
.


Background

Steve Ewanchuk brought a 17-year-old girl into his van for a job interview. After the interview, Ewanchuk invited the woman to his trailer in behind. He took her into his trailer and began to make a series of advances. Each time she would say "no" to his advance and he would stop but, after the passing of some time would then renew his sexual advances. She testified at trial that during her time in the trailer she was very afraid and that is why she did not take further action to stop the sexual conduct such as leaving or attempting to physically resist the man. Before she left, Ewanchuk paid her $100.00 so she could help pay for childcare. At trial, Ewanchuk successfully argued that, although the woman had initially said "no" to his sexual touching because he had continued and she had failed to object further this constituted "implied consent". The acquittal was upheld on appeal. In the decision of the
Alberta Court of Appeal The Court of Appeal of Alberta (frequently referred to as Alberta Court of Appeal or ABCA) is a Court system of Canada#Appellate courts of the provinces and territories, Canadian appellate court that serves as the highest appellate court in the ...
, Justice John McClung commented that "it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and
crinoline A crinoline is a stiff or structured petticoat designed to hold out a skirt, popular at various times since the mid-19th century. Originally, crinoline described a stiff fabric made of horsehair ("crin") and cotton or linen which was used to ...
s" and that Ewanchuk's conduct was "less criminal than hormonal". The issue before the Supreme Court was "whether the trial judge erred in his understanding of consent in sexual assault and whether his conclusion that the defence of 'implied consent' exists in Canadian law was correct".


Reasons of the court

Justice Major, for the majority, held there was no defence of "implied consent" to sexual assault and overturned the ruling of the Court of Appeal. The accused, Major explained, must raise a reasonable doubt that there was consent. Consent can be shown in one of two ways. Either where the "complainant in her mind wanted the sexual touching to take place" or, in the case of establishing a mistaken belief of consent, where "the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused". L'Heureux-Dubé held that the defence could not be used unless the accused took sufficient steps to ascertain consent. Here, the accused did not make any attempt to ensure that the accused had consent when he moved from a massage to sexual touching. She also castigated McClung J's opinion severely, arguing that it reposed on myths and stereotypes about women and sexual assault.


Aftermath

In response to L'Heureux-Dubé's criticism, McClung wrote a letter to the ''
National Post The ''National Post'' is a Canadian English-language broadsheet newspaper and the flagship publication of the American-owned Postmedia Network. It is published Mondays through Saturdays, with Monday released as a digital e-edition only.
'' criticizing her and claiming she let her personal beliefs get in the way of her judgment. He also made the comment that her judgments contributed to a rise in male suicides in Quebec. He soon published an apology for the comment, saying he was unaware that L'Heureux-Dubé's husband had committed suicide.


See also

*
List of Supreme Court of Canada cases (Lamer Court) This is a chronological list of notable cases decided by the Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate ...
* ''
R v JA R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars''. The letter ...
''


External links

* {{DEFAULTSORT:Ewanchuk Supreme Court of Canada cases 1999 in Canadian case law Rape in Canada Canadian criminal case law