Ewanchuk

//R. v. Ewanchuck//


 * Ratio: There is no defence of implied consent to sexual assault in Canadian law. **


 * Facts: **The complainant is a 17 year-old woman who alleges that the accused sexually assaulted her during a job interview. The interview took place in the parking lot of a mall inside the accused’s van. During the interview, the accused showed the complainant some of his work that he kept in his trailer, at which time the complainant began to feel afraid because she believed the door to the trailer was locked. The accused initiated intimate touching, which the complainant asked him to stop several times by saying “No” and “Please stop”. Each time the complainant asked him to stop he would for several minutes but then would commence touching her again. The complainant testified that she tried not to show the accused that she was afraid because she thought it would provoke him into using force. Eventually the complainant said she had to go, at which time the accused gave her $100 and told her not to tell anyone about the incident.


 * Holding:** Appeal allowed. The accused is convicted of sexual assault.


 * Reasoning:**

// Major J. // (//Lamer C.J.C., Cory, Iacobucci, Bastarache// and //Binnie JJ.// concurring): · This appeal considers whether the trial judge erred in his understanding of consent to sexual assault and whether his finding that the defense of implied consent exists in Canadian law is correct. · The //actus reus// of sexual assault is unwanted sexual touching. The //mens rea// is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. Sexual assault is indirectly defined in the //Criminal Code//. It is included in the definitions of art. 265(1) where the assault is committed in circumstances of a sexual nature. · The //actus reus// has three components: i) touching ii) the sexual nature of the contact iii) absence of consent.  ·  The first two elements are determined objectively. The third is purely subjective and determined by reference to the complainant's subjective internal state of mind towards the touching.   ·  While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed in light of all the evidence. It is open to the accused to claim that the complainant's words and actions raise a reasonable doubt against her assertion that she did not want the sexual touching to take place.  ·  The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the //mens rea// stage of the inquiry.  ·  The trial judge found that the compainant had not consented to the accused’s touching but nonetheless acquitted the accused because the complainant’s conduct raised reasonable doubt. This he referred to as implied consent. This conclusion was a mistake. There is no defence of implied consent to sexual assault in Canadian law. // Effect of Complainant’s Fear: // · For consent to be legally effective, it must be freely given. Therefore, even if there was a reasonable doubt raised about the complainant’s non-consent, there are factors which may vitiate this consent as enumerated in s. 265(3), which include submission by reason of force, fear, threats, fraud or the exercise of authority. · There is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force. · For consent to be vitiated by fear, it must be found that the complainant consented as a result of an honestly held fear. This fear need not be reasonable nor must it be communicated to the accused to the accused in order for consent to be vitiated. // L'Heureux-Dubé J. // (//Gonthier J.// concurring): · Begins her judgment by framing the issue of sexual assault in the larger context of violence against women, citing statistical data, international conventions, Canadian jurisprudence, and the //Charter//. · L’Heureux-Dube agrees generally with the reasoning of Major J. and agrees with the result that he reaches · H-D emphasizes some particular facts, including that the complainant had initially asked to have the interview in the mall but that the accused preferred a more private location, the accused was twice the size of the complainant and some of what the accused said during the incident revealed that he was aware that the complainant was not a willing participant. · H-D says that this case was not about consent since none was given, rather it is about myths and stereotypes. //“// // Myths of rape include the view that women fantasise about being rape victims; that women mean 'yes' even when they say 'no'; that any woman could successfully resist a rapist if she really wished to; that the sexually experienced do not suffer harms when raped (or at least suffer lesser harms than the sexually 'innocent'); that women often deserve to be raped on account of their conduct, dress, and demeanour; that rape by a stranger is worse than one by an acquaintance. Stereotypes of sexuality include the view of women as passive, disposed submissively to surrender to the sexual advances of active men, the view that sexual love consists in the 'possession' by a man of a woman, and that heterosexual sexual activity is paradigmatically penetrative coitus.” // · H-D gives a broader reading to s.265 of the //Criminal Code// than Major J. stating that s.265(3) applies to cases where the "complainant submits or //does not resist//" by reason of the application of force, threats or fear of the application of force, fraud or the exercise of authority. Therefore, that section should also apply to cases where the complainant is silent or passive in response to such situations. · H-D is very critical of the trial judge’s finding of implied consent. · She also critiques the Mclung J.A. of the Court of Appeal for stating "it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines" and also for pointing out that the complainant has a six-month old baby and lives with her boyfriend. H-D argues that by pointing out these facts, Mclung J.A. reinforces myths that in some circumstances a woman is less worthy of belief or that she invited the sexual assault. · H-D further criticizes Mclung’s J.A.’s decision in the following passage: “91 The expressions used by McClung J.A. to describe the accused's sexual assault, such as "clumsy passes" (p. 246) or "would hardly raise Ewanchuk's stature in the pantheon of chivalric behaviour" (p. 248), are plainly inappropriate in that context as they minimize the importance of the accused's conduct and the reality of sexual aggression against women.” Paras 92-93 also critque Mclung J.A.’s decision. · The defence of mistaken belief in consent is not applicable in this case. For mistaken belief in consent to apply, the accused must have take reasonable steps to ascertain consent (s.273.2(b) //Criminal Code//). · In this case, the accused cannot rely on the complainant's silence or ambiguous conduct to initiate sexual contact. Moreover, where a complainant expresses non-consent, the accused has a corresponding escalating obligation to take additional steps to ascertain consent. Here, despite the complainant's repeated verbal objections, the accused did not take any step to ascertain consent, let alone reasonable ones. · Agrees with Major J. that a conviction should be entered and that the case be sent back to the trail judge for sentencing. // Mclachlin J. // agrees with the reasons of Major J. as well as with H-D that stereotypical assumptions lie at the heart of what went wrong in this case. She also allows the appeal.