R. v. Ewanchuk

The complainant, a seventeen year old woman, was interviewed by E for a job in his van. The interview, continued in E’s trailer where he offered to display some of his products. The complainant purposely left the door of the trailer open, but E allegedly closed it in a way that made the complainant think it was locked. E then initiated a number of incidents involving touching, each progressively more intimate than the last one, notwithstanding that the complainant plainly said no on each occasion, causing E to stop and then  to start again shortly thereafter. The complainant claimed that any compliance with his advances was done out of fear and that the conversation between the complainant and E indicated that he knew she was afraid and was not a willing participant. The trial judge acquitted E, relying on the defense of implied consent, The Court of Appeal upheld the acquittal, and the complainant appealed to the Supreme Court.

[Adapted from INTERIGHTS summary, with permission]

The Supreme Court reversed the opinion of the lower courts and convicted E of sexual assault The Court reasoned that having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The doctrine of implied consent has not been recognized in regard to sexual assault in order to bring a defense of consent.

The Court further noted that the trial judge had determined that the complainant's actual state of mind was that E's touching was unwanted, but, instead of finding this conclusive, which he should have done, he treated what he perceived as the complainant's ambiguous conduct as raising a reasonable doubt about consent, which he described as "implied consent." Any doubt as to her ambiguous conduct was accounted for by what the trial judge accepted as her honest and pervasive fear. According to section 265(3) of the Criminal Code, the law defines a series of conditions, including fear and the exercise of authority, where an absence of consent will be deemed notwithstanding the complainant's ostensible consent or participation.

Justice L'Heureux-Dube noted that violence against women raises the rights to equality guaranteed by section 15 of the Canadian Charter of Rights and Freedoms and the right to human dignity guaranteed by section 7. These rights have been adopted in international law and developed by the Convention on the Elimination of All Forms of Discrimination Against Women. Accordingly, this case was not about consent, since none was give, but was instead about myths and stereotypes. The trial judge did not take "no" to mean that the complainant did not consent. This error arose from the mythical assumption denying women's sexual autonomy that when a woman says "no" she is really saying "yes", "try again" or "persuade me." Complainants should be able to rely on a judiciary whose impartiality is not compromised by such biased assumptions.

[Adapted from INTERIGHTS summary, with permission]

"To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. Section 265(3) of the Criminal Code enumerates a series of conditions — including submission by reason of force, fear, threats, fraud or the exercise of authority — under which the law will deem an absence of consent in assault cases, notwithstanding the complainant’s ostensible consent or participation. In a situation where the trier of fact finds that the complainant did not want to be touched sexually and made her decision to permit or participate in the sexual assault activity as a result of an honestly held fear, the law deems an absence of consent and the third component of the actus reus of sexual assault is established. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the  plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective. If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea." Page 333.

"This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her. The application of s. 265(3) requires an entirely subjective test. As irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent." Page 335.