Facts
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. every time she would say "no" to his advance and he would stop but would renew his sexual advances. She testified at trial that during her time in the trailer she was very afraid and thus did not take further action to stop the sexual conduct. 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 with Justice John McClung commenting 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 Crown appealed on the issue of an implied consent defence.
Issue
- Is there a defence of implied consent available in sexual assault?
Decision
Appeal allowed.
Reasons
Major, writing 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 must raise a reasonable doubt that there was consent. Consent can be shown in one of two ways:
- the "complainant in her mind wanted the sexual touching to take place"; or
- "the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused".
L'Heureux-Dubé, in a concurring judgment, 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's opinion severely, arguing that it relied on myths and stereotypes about women and sexual assault.
Ratio
The accused did not make any attempt to ensure that the accused had consent when he moved from a massage to sexual touching.