R. v. Ewanchuk, [1999] 1 S.C.R. 330 is a leading Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 case concerning the defence of consent to a charge of sexual assault. The Court held that there was no defence of implied consent

Implied consent

Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation...

. The case is also notable for the controversy that arose between Justice John McClung

John McClung

John Wesley "Buzz" McClung was a historian, lawyer, jurist, and a judge of the Alberta Court of Appeal.-Early life:...

 and Justice Claire L'Heureux-Dube

Claire L'Heureux-Dubé

Claire L'Heureux-Dubé, served as a 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.- Personal history :...

.

Background

Steve Ewanchuk brought a 17-year-old woman 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 and told her not to tell anyone.

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

John McClung

John Wesley "Buzz" McClung was a historian, lawyer, jurist, and a judge of the Alberta Court of Appeal.-Early life:...

 commented that "it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinoline

Crinoline

Crinoline was originally a stiff fabric with a weft of horse-hair and a warp of cotton or linen thread. The fabric first appeared around 1830, but by 1850 the word had come to mean a stiffened petticoat or rigid skirt-shaped structure of steel designed to support the skirts of a woman’s dress into...

s” 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 that 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-Dube 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.

Procedural Choice & Substantive Result

This case is also notable because it shows how a different choice of procedure results in a different substantive result. If one assumes that the decision of the trier of fact is the same at trial, then three different substantive results ensue. The section of the Criminal Code of Canada under which Ewanchuk was charged is a hybrid offense, the Crown can proceed either by way of Summary Conviction or by way of Indictment. Once the Crown had indicated that it would proceed by way of Indictment, the defense has the option of trial by Judge or trial by Judge and Jury. Had the Crown proceeded by way of summary conviction and the Judge decided that Ewanchuk was not guilty then there would have been no appeal. Had the trial been held by Judge and Jury, the most that the Supreme Court of Canada could have done was to rule a mistrial because the Judge had erred in law by instructing the jury as to the defense of "implied consent". In this case, the defense chose trial by Judge alone and only in this case can an appeal court enter a verdict of guilty. The different result between trial by judge alone and trial by judge and jury is a result of the Basford amendment. The Basford amendment is named after the Minister of Justice who removed the ability of an appeal court to enter a verdict of guilty after a jury acquits. Canada is the only common law jurisdiction which allows for appeals by the Crown from trials on points of law.

Aftermath

In response to L'Heureux-Dube's criticism, McClung wrote a letter to the National Post

National Post

The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...

criticizing her and claiming she let her personal beliefs get in the way of her judgment. He also made the comment that her judgments contributed to a rise in male suicides in Quebec. He soon published an apology for the comment, saying he was unaware that L'Heureux-Dubé's husband had committed suicide.