Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned whether there was a defence of “implied consent” in sexual assault law.
LEAF, in partnership with DisAbled Women’s Network Canada (DAWN) intervened before the Supreme Court of Canada.
Facts
The 17-year-old complainant attended a job interview in Steve Ewanchuk’s van. Mr. Ewanchuk then invited her to see his work in the trailer behind the van. The complainant agreed, but purposely left the door open. Mr. Ewanchuk then closed the door in a manner which made the complainant think it was locked, and she became frightened. He made numerous advances, getting more aggressive each time even though the complainant said no to each advance. Frightened that she would be hurt if she seemed afraid, the complainant attempted to appear relaxed and comfortable.
The trial judge acquitted Mr. Ewanchuk, relying on the defence of “implied consent” – even though he believed the complainant had not consented, her failure to communicate that she was afraid and her attempts to seem at ease meant that her subjective lack of consent did not matter. The Alberta Court of Appeal upheld the acquittal. The Crown appealed to the Supreme Court of Canada.
Arguments
LEAF and DAWN argued that the trial judge’s definition of consent undermined women’s constitutional rights to equal protection and benefit of the law, meaningful security of the person, and equal access to justice. They emphasized that consent required the communication of a freely exercised, capable, and deliberate agreement to the sexual activity in question. “Implied consent” created a default that required complainants to protest, rather than placing the responsibility on men to obtain full and express consent. Implied consent also stemmed from assumptions about women’s sexuality, and denied their dignity and agency.
Outcome
The Supreme Court held that there were only two options for a trial judge – either the complainant consented, or she did not. The Court clearly stated that there is no defence of implied consent in Canadian law. And the judgment emphasized that, to be legally effective, consent needed to be freely given. As a result, the Supreme Court allowed the Crown’s appeal, and convicted Mr. Ewanchuk of sexual assault.
LEAF is grateful to Diane Oleskiw and Ritu Khullar, counsel in this case.
Download the 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].
