This case concerned the consideration of power dynamics in understanding consent to sexual activities.
LEAF intervened before the Supreme Court of Canada.
Laura Norberg obtained a prescription for painkillers from Morris Wynrib, a doctor. Dr. Wynrib eventually confronted Ms. Norberg about her drug use, and she admitted that she had a substance addiction. Dr. Wynrib suggested that Ms. Norberg engage in sexual activities with him to receive the painkillers. Ms. Norberg turned to other sources to acquire painkillers, but later returned to Dr. Wynrib and engaged in sexual activities with him in exchange for the medications. Ms. Norberg later checked herself into a rehabilitation centre.
Ms. Norberg sued Dr. Wynrib for sexual assault, negligence, breach of fiduciary duty, and breach of contract. The Supreme Court of British Columbia dismissed her claim, finding that she had given “implied consent” to the sexual activities because she never said she did not want to engage in the activities. Although Dr. Wynrib had breached his fiduciary duty to Ms. Norberg, she was not entitled to damages because she voluntarily participated in the relationship.
A majority of the British Columbia Court of Appeal agreed that Ms. Norberg had given her “implied consent” to the sexual activities. They found there had been no breach of fiduciary duty. Although Mr. Wynrib had been negligent, Ms. Norberg could not recover damages because she engaged in criminal conduct to obtain the painkillers.
LEAF argued that sexual assault was sexual discrimination and an equality issue. Sexual assault was intended to subordinate women and disproportionately affected women. It further disproportionately affected women belonging to other marginalized communities such as women with disabilities and racialized women.
Understanding consent needed be contextual and consider any power dynamics involved — although women might appear to have consented to certain sexual activities, their “consent” might have actually been the result of exploitative circumstances that forced them to consent to such activities. Failing to consider these nuances resulted in furthering gender inequality.
LEAF also argued that the courts should not deny damages to individuals who have engaged in illegal activities or activities the courts saw as immoral. Damages awarded for harms suffered in sexual assault and prolonged substance dependence needed to recognize the very real physical, psychological and emotional harm suffered.
A majority of the Supreme Court found that Ms. Norberg should be allowed to recover damages. In the context of sexual assault under tort law, courts needed to consider the power relationship between the parties in assessing consent. In this case, Dr. Wynrib had power over Ms. Norberg, which he abused and exploited. It was wrong for the lower courts to say Ms. Norberg could not recover damages because she engaged in illegal conduct.
LEAF is grateful to Victoria Gray, counsel in this case.
Download LEAF’s factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].