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, 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 crinolines" 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.
Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which includes child sexual abuse, groping, rape, or the torture of the person in a sexual manner.
R v Park [1995] 2 S.C.R. 836, is a Supreme Court of Canada case dealing with the mistaken belief defence – i.e. that the accused had an honest but mistaken belief that he had consent to engage in sexual relations with the complainant – and the role of the Canadian Charter of Rights and Freedoms in relation to sexual assault.
Egan v Canada, [1995] 2 SCR 513 was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.
Claire L'Heureux-Dubé 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, after Bertha Wilson. Previously, she had been one of the first woman lawyers to handle divorce cases, and was the first woman appointed as a judge to the Quebec Superior Court and the Quebec Court of Appeal.
John Wesley "Buzz" McClung was a historian, lawyer, jurist, and a judge of the Alberta Court of Appeal.
R v Sansregret [1985] 1 S.C.R. 570 is a leading Supreme Court of Canada case on the requirements and defence for the criminal charge of rape.
R v Daviault [1994] 3 S.C.R. 63, is a Supreme Court of Canada decision on the availability of the defence of intoxication for "general intent" criminal offences. The Leary rule which eliminated the defence was found unconstitutional in violation of both section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Instead, intoxication can only be used as a defence where it is so extreme that it is akin to automatism or insanity.
R v Cuerrier was a 1998 decision by the Supreme Court of Canada, which ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime under Canadian law.
In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.
R v Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of "insanity". The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament created new laws of what to do with individuals who were found not criminally responsible by reason of a mental disorder. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: the Attorney General of Canada, the Lieutenant Governor's Board of Review of Ontario, the Canadian Disability Rights Council, the Canadian Mental Health Association, and the Canadian Association for Community Living.
R v Seaboyer, [1991] 2 S.C.R. 577 is a leading Supreme Court of Canada decision where the Court struck-down a rape-shield provision of the Criminal Code as it violated the right to "full answer and defence" under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The case was decided with R v Gayme.
R v Mills, [1999] 3 S.C.R. 668 is a leading Supreme Court of Canada decision where the Court upheld the newly enacted rape shield law when challenged as a violation to section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The rape shield law was the second of its type, the first having been struck down in R. v. Seaboyer. Accordingly, this case is often cited as an example of judicial dialogue.
Canada (AG) v Mossop, [1993] 1 SCR 554 was the first decision of the Supreme Court of Canada to consider equality rights for gays. The case is also significant as one of Justice L'Heureux-Dube's most famous dissents where she proposes an evolving model of the "family".
A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
R v W (D), [1991] 1 S.C.R. 742 is a leading decision of the Supreme Court of Canada on assessing guilt based on the credibility of witnesses in a criminal trial. More specifically, W.D. examines sexual assault cases and burdens of proof in evidence law.
R v JA2011 SCC 28 is a criminal law decision of the Supreme Court of Canada regarding consent in cases of sexual assaults. The court found that a person can only consent to sexual activity if they are conscious throughout that activity. If a person becomes unconscious during the sexual activity, then they legally cannot consent, whether or not they consented earlier. In addition to the two parties, the Court heard from two interveners: the Attorney General of Canada and the Women's Legal Education and Action Fund (LEAF).
R v Evans and McDonald was the prosecution of two footballers, Ched Evans and Clayton McDonald, who were accused of the rape of a woman. On 20 April 2012, Evans was convicted and sentenced to five years imprisonment. McDonald was acquitted. Several people were later fined after naming the woman on Twitter and other social media websites.
Robin Camp is a former Federal Court of Canada judge. Camp was the subject of a high-profile removal hearing before the Canadian Judicial Council for his role in a 2014 sexual assault trial that he presided over. The judicial committee recommended that he be removed from the bench. In 2018 Camp was reinstated into the Law Society of Alberta.
After a sexual assault or rape, victims are often subjected to scrutiny and, in some cases, mistreatment. Victims undergo medical examinations and are interviewed by police. If there is a criminal trial, victims suffer a loss of privacy and their credibility may be challenged. Victims may also become the target of slut-shaming, abuse, social stigmatization, sexual slurs and cyberbullying.
R v Hutchinson, 2014 SCC 19 is a decision of the Supreme Court of Canada on sexual assault and consent under the Criminal Code. The Court upheld the sexual assault conviction of a defendant in a condom sabotage case, holding that the complainant's consent to sexual activity with him had been vitiated by fraud when he poked holes in his condom.
