R. v. Ewanchuk (S.B.), (1999) 235 N.R. 323 (SCC)

• Judge: Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 25, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 235 N.R. 323 (SCC);232 AR 1;22 CR (5th) 1;[1999] SCJ No 10 (QL);235 NR 323;[1999] ACS no 10;[1999] 6 WWR 333;169 DLR (4th) 193;AZ-99111015;185 WAC 1;[1999] CarswellAlta 99;131 CCC (3d) 481;JE 99-543;41 WCB (2d) 122;[1999] 1 SCR 330;68 Alta LR (3d) 1;1999 CanLII 711 (SCC)

R. v. Ewanchuk (S.B.) (1999), 235 N.R. 323 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.R. TBEd. FE.020

Her Majesty The Queen (appellant) v. Steve Brian Ewanchuk (respondent) and The Attorney General of Canada (intervenor) and Women's Legal Education and Action Fund, Disabled Women's Network Canada and Sexual Assault Centre of Edmonton (intervenors)

(26493)

Indexed As: R. v. Ewanchuk (S.B.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin, Iacobucci,

Major, Bastarache and Binnie, JJ.

February 25, 1999.

Summary:

The complainant (17 year old mother of one) was in the 30 year old accused's mobile trailer in a mall parking lot for a job inter­view. During their 2.5 hours in the trailer, they massaged each other's backs, then the accused gave the complainant a foot mass­age, proceeding up to her inner thighs. When the accused's hands neared the complainant's breasts, the complainant said "No" and the accused stopped. Next, while lying on the floor, the accused rubbed his pelvic area against the complainant's pelvic area. When the complainant said "No", the accused stopped. Later, the accused placed his exposed non-erect penis against the outside of the complainant's clothes. The complain­ant protested and stated that she wished to leave. The accused and complainant walked out of the trailer. The accused was charged with sexual assault.

The Alberta Court of Queen's Bench acquitted the accused. The trial judge found that the complainant feared the accused, but did not convey that fear to him. The accused did not testify, so the trial judge held that the defence of honest but mistaken belief in consent was not available. However, the court found "implied consent" to the sexual activity. The Crown appealed.

The Alberta Court of Appeal, Fraser, C.J.A., dissenting, in a judgment reported 212 A.R. 81; 168 W.A.C. 81, dismissed the appeal. The court held that the trial finding of implied consent was a factual finding with evidentiary support, which an appeal court had no jurisdiction to overturn. The court held that "implied con­sent" and "hon­est but mistaken belief in consent" were distinct defences. Fraser, C.J.A., would have allowed the appeal and substituted a convic­tion, stating that the trial judge erred in equating fear-driven silence with implied consent. Fraser, C.J.A., stated that there was no consent absent some posi­tive affirmation. Silence in the face of sexual advances did not constitute consent. The Crown appealed.

The Supreme Court of Canada allowed the appeal, substituted a conviction and remitted the matter for sentencing. There was no defence of "implied consent". Once the trial judge was satisfied that the complainant did not consent, the accused's only defence was an honest but mistaken belief in consent and there was no air of reality to that defence.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - The 17 year old complainant was in the 30 year old accused's mobile trailer in a mall parking lot for a legitimate job interview - During their 2.5 hours in the trailer, they massaged each other's backs - When the accused's hands neared the complainant's breasts, the complainant said "No" and the accused stopped - Next, while lying on the floor, the accused rubbed his pelvic area against the com­plainant's pelvic area - The complainant said "No", and again the accused stopped -Later, the accused placed his exposed non-erect penis against the outside of the com­plainant's clothes - The complainant pro­tested and asked to leave - They walked out of the trailer without further incident - The trial judge acquitted the accused of sexual assault, finding implied consent where the complainant acted out of fear, but did not convey that message to the accused - The Supreme Court of Canada substituted a conviction - There was no defence of "implied consent" - Once the complainant verbalized her lack of consent, absent an honest but mis­taken belief in consent by the accused (no air of reality here), the accused was guilty of sexual assault.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - The Supreme Court of Canada stated that if a complainant asserted no consent to unwanted sexual touching, the question was one of credibility, consider­ing the totality of the evidence, including any ambiguous or contradictory conduct by the complainant - If the trial judge was sat­isfied that there was no consent, the actus reus was established and the inquiry shifted to the accused's state of mind - If the com­plainant's consent was motivated by fear, fraud, etc. (Criminal Code, s. 265(3)), then the law deemed an absence of consent - If there was no consent, the accused's defence was limited to an honest but mis­taken belief in consent - There was no defence of "implied consent" - The accused must establish that he "honestly believed that the complainant had com­municated consent . Any other belief, how­ever honest­ly held, is not a defence" - Further, the accused's belief could not be reckless, wilfully blind or tainted by an awareness of any of the factors in ss. 273.1(2) and 273.2 - The court stated that "if at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances" - See para­graphs 23 to 66.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - The trial judge acquitted an accused of sexual assault on the basis of the complainant's "implied consent" (i.e., trial judge believed that she did not con­sent, but that her conduct raised a reason­able doubt) - The Supreme Court of Canada held that there was no defence of "implied consent" - The complainant either consented or she did not - There was no third option - The court stated that "if the trier of fact accepts the complain­ant's testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of con­sent is established and the third component of the actus reus of sexual assault is proven" - See paragraph 31.

Criminal Law - Topic 670.1

Sexual offences - Rape or sexual assault - Sexual assault - Elements - The Supreme Court of Canada stated that "a conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the in­tention to touch, knowing of, or being reckless or wilfully blind to, a lack of consent, either by words or actions, from the person being touched." - See para­graph 23.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See first and second Crimi­nal Law - Topic 666 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquit­tal - An accused was acquitted of sexual assault where the trial judge found "implied consent" - The appellate court dismissed the Crown's appeal, where the trial finding of implied consent was a factual finding with evidentiary support, which an appeal court had no jurisdiction to overturn - The Supreme Court of Canada substituted a conviction - The trial judge committed a reviewable error of law in finding "implied consent" - No such defence existed - See paragraphs 21 to 22.

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - [See Criminal Law - Topic 4975 ].

Cases Noticed:

R. v. Singer, [1932] S.C.R. 279, refd to. [para. 21].

R. v. Belyea - see R. v. Singer.

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 64 C.C.C.(3d) 193; 5 C.R.(4th) 351, refd to. [para. 24].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta.L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 25].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97; 45 D.L.R.(4th) 98; 59 C.R.(3d) 193, refd to. [para. 25].

R. v. Jensen (C.M.) (1996), 90 O.A.C. 183; 106 C.C.C.(3d) 430 (C.A.), affd. [1997] 1 S.C.R. 304; 209 N.R. 1; 98 O.A.C. 321, refd to. [para. 26].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241; 99 C.C.C.(3d) 1, refd to. [para. 26].

Saint-Laurent v. Hétu, [1994] R.J.Q. 69 (C.A.), refd to. [para. 37].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21; 33 C.R.(4th) 165, refd to. [para. 41].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346; 23 C.R.(4th) 189; 105 D.L.R.(4th) 632; 17 C.R.R.(2d) 1, refd to. [para. 42].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; 14 C.R.(3d) 243; [1980] 4 W.W.R. 387; 111 D.L.R.(3d) 1; 52 C.C.C.(2d) 481, refd to. [para. 43].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200; 33 C.C.C.(3d) 481, refd to. [para. 44].

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 131 N.S.R.(2d) 79; 371 A.P.R. 79; 89 C.C.C.(3d) 96, refd to. [para. 51].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241; 116 C.C.C.(3d) 289, refd to. [para. 52].

R. v. Laybourn, Bulmer and Illingworth, [1987] 1 S.C.R. 782; 75 N.R. 271; [1987] 4 W.W.R. 577; 33 C.C.C.(3d) 385; 39 D.L.R.(4th) 641; 58 C.R.(3d) 48; 14 B.C.L.R.(2d) 196, refd to. [para. 55].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481; 109 D.L.R.(4th) 478; 26 C.R.(4th) 1; 19 C.R.R.(2d) 93, refd to. [para. 55].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1; 50 C.C.C.(3d) 193; 61 D.L.R.(4th) 480, refd to. [para. 59].

Da­vidson v. Slaight Communi­cations Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 73].

R. v. Keegs­tra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 73].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 75].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 75].

R. v. Daigle (S.), [1998] 1 S.C.R. 1220; 228 N.R. 201, refd to. [para. 99].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1), sect. 265(2) [para. 24]; sect. 265(3) [para. 36]; sect. 273.1(1) [para. 47]; sect. 273.1(2), sect. 273.2 [para. 50].

United Nations, Convention on the Elim­in­ation of All Forms of Discrimination Against Women, Can. T.S. 1982, No. 31, art. 1, art. 2 [para. 70].

Authors and Works Noticed:

Andrias, Richard T., Rape Myths: A Per­sistent Problem in defining and pros­ecut­ing rape (1992), 7:2 Crim. J. 2, generally [para. 82].

Archard, David, Sexual Consent (1998), pp. 131 [para. 82]; 139 [para. 89].

Blackstone, William, Commentaries on the Laws of England (4th Ed. 1770), Book III, p. 120 [para. 28].

Boyle, Christine L.M., Sexual Assault (1984), pp. 27, 28, 29 [para. 75].

Brett, Nathan, Sexual Offences and Con­sent (1998), 11 Can. J. Law & Jur. 69, p. 73 [para. 27].

Burt, Martha R., Rape Myths and Acquaintance Rape, in Parrot, A., and Bechhofer, L., Acquaintance Rape: The Hidden Crime (1991), p. 26 [para. 82].

Canada, Department of Justice, Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action; Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System (April 1992), p. 13 [para. 68].

Canada, Statistics Canada, The Violence Against Women Survey, The Daily (November 1993), Catalogue No. 11-001E [para. 68].

Cook, Rebecca J., Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (1990), 30 Va. J. Int'l. L. 643, p. 643, art. 1, art. 2 [para. 70].

Estrich, Susan, Rape (1986), 95 Yale L.J. 1087, p. 1090 [para. 93].

MacKinnon, Catherine A., Toward A Feminist Theory of the State (1989), generally [para. 82].

McInnes, J., and Boyle, Christine, Judging Sexual Assault Law against a Standard of Equality (1995), 29 U.B.C.L. Rev. 341, generally [para. 99].

Naffine, Ngaire, Possession: Erotic Love in the Law of Rape (1994), 57 Mod. L. Rev. 10, generally [para. 82].

Parrot, A., and Bechhofer, L., Acquaint­ance Rape: The Hidden Crime (1991), generally [para. 82].

Renner, K. Edward, Alksnis, Christine, and Park, Laura, The Standard of Social Justice as a Research Process (1997), 38 Can. Psychology 91, p. 100 [para. 96].

Sheehy, Elizabeth A., Canadian Judges and the Law of Rape: Should the Charter Institute Bias? (1989), 21 Ott. L. Rev. 741, generally [para. 82].

Stuart, Don, Annotation on R. v. Ewanchuk (1998), 13 C.R.(5th) 330, p. 330 [para. 87].

Stuart, Don, Canadian Criminal Law (3rd Ed. 1995), p. 513 [para. 26].

United Nations, General Assembly, Com­mittee on the Elimination of Discrimina­tion Against Women, G.A. Res. 34/180, U.N. Doc. A/47/48, 11th Session (1979), General Recommen­dation No. 19, art. 17 [para. 71].

United Nations, General Assembly, Dec­la­ration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. Doc. A/48/49 (1993), art. 4 [para. 72].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 551 to 561 [para. 36].

Wilson, Bertha, Will Women Judges Really Make a Difference (1990), 28 Osgoode Hall L.J. 507, generally [para. 95].

Counsel:

Bart Rosborough, for the appellant;

Peter J. Royal, Q.C., for the respondent;

Beverly Wilton and Lisa Futerman, for the intervenor, Attorney General of Canada;

Diane Oleskiw and Ritu Khullar, for the intervenors, Women's Legal Education and Action Fund and Disabled Women's Network Canada;

Paul L. Moreau, for the intervenor, Sexual Assault Centre of Edmonton.

Solicitors of Record:

Attorney General for Alberta, Edmonton, Alberta, for the appellant;

Royal, McCrum, Duckett & Glancy, Ed­monton, Alberta, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Oleskiw, Anweiler, Toronto, Ontario, and Dale Gibson Associates, Edmonton, Alberta, for the intervenors, Women's Legal Education and Action Fund and the Disabled Women's Network Canada;

Witten, Binder, Edmonton, Alberta, for the intervenor, Sexual Assault Centre of Edmonton.

This appeal was heard on October 14, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On February 25, 1999, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Major, J. (Lamer, C.J.C., Cory, Iaco­bucci, Bastarache and Binnie, JJ., con­curring) - see paragraphs 1 to 67;

L'Heureux-Dubé, J. (Gonthier, J., con­curring) - see paragraphs 68 to 102;

McLachlin, J. - see paragraphs 103 to 104.