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Sexual Assault and Implied consent: R. v. Ewanchuk [1999] 1 S.C.R.

330
The Facts:
Sarah, a 17 year old woman, was interviewed by Steve Ewanchuk, a 30 year old man, for a job selling his
woodwork products in booths in shopping malls. The interview took place in Steves van in the parking lot of
a mall in Edmonton. Sarah left the van door open, as she was hesitant about discussing the job offer in
Steves vehicle. The interview was conducted in a polite, business-like fashion. After the interview, Steve
invited Sarah to see some of his woodwork, which was in a trailer behind the van. Sarah purposely left the
trailer door open, but Steve closed the door in a way that made Sarah think he had locked it.
Sarah became frightened at this point. A short time later Steve said he was tense and asked Sarah to rub
his shoulders, which she did briefly. Then Steve began massaging Sarahs shoulders, but when his touch
became sexual in nature Sarah said no. Steve initated a number of incidents involving touching, each
becoming progressively more sexual, despite the fact that Sarah plainly said no each time.
Steve would stop his advances each time Sarah said no but would then try again shortly after with an
even more sexual advance. Throughout these events Sarah was afraid that anything she did to resist might
provoke Steve to become more violent, so when Steve lay down on top of her she said nothing, but when
he attempted to undo his pants, Sarah said no, stop. At this point Steve stopped, saying See, Im a nice
guy, I stopped.
Then he gave Sarah a $100 bill for the massage and told her not to tell anyone about it. Sarah said that she
had to go and Steve opened the door of the trailer. When she got home, Sarah was very emotionally
distressed and called the police, claiming she had been sexually assaulted.

Sexual Assault and Implied consent: R. v. Ewanchuk [1999] 1 S.C.R. 330


The Charter

Section 15 (1) Every individual is equal before and under the law and has the right to equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability. (also now includes sexual
orientation as a ground).
Discussion Questions:
- What is happening in the scenario?
- What are the issues?
- Is there discrimination? If so, what does it look like? (What is discrimination? Defn below)
- How do each of the parties feel? What are they thinking?
o Sarah? Steve?
- What would you do if you were Sarah?
- What are some of the outside influences or pressures that shape our decisions and reactions?
o Outside influences that would suggest Sarah asked for it? Put herself in a dangerous
position?
- What do you think should happen? How would this be best solved?
Discrimination Definition:
Unfair treatment of one person, or group usually because of prejudice about race, ethnicity, age, religion,
gender, sex, or sexual orientation.
Sexual Harassment Definitions:
Behaviour of a sexual nature which you feel you must put up with in order to keep your job, get a promotion
etc. Sexual Harassment is discrimination based on a persons sex usually because that person is femaleSexual Harassment includes any and all unwelcome sexual advances, requests for sexual favours, and
other verbal or physical conduct of a sexual nature. But it does not require physical touching!
Sexual Assault Definition:
Sexual Assault means forcing someone to be part of any sexual activity without their permission. It is a
sexual assault to touch any part of another persons body without their consent.
To be found guilty of sexual assault, there must be proof of:
a) Sexual contact or touching
b) the intention to sexually touch a person

c) No permission from the person who was assaulted


d) Deliberately ignoring that no permission was given

Consent
Consent means voluntary agreement to participate in sexual activity. A person cannot give consent if
he/she is being forced to participate, a person is incapable of consenting, or when they are afraid of the
person who is asking them to consent. Silence is not consent. ONLY a YES is consent in Canadian Law.

Sexual Assault and Implied consent: R. v. Ewanchuk [1999] 1 S.C.R. 330


What really happened?
Trial Court
- The court found Ewanchuk was not guilty of sexual assault even though they accepted that Sarah
did not give her consent. The Court held that because Sarah did not scream, struggle or try to
escape, Ewanchuk could use the defense of implied consent.
Alberta Court of Appeal
- 2 judges agreed with the Trial Judge and one disagreed. Since the majority rules, the result was
that the acquittal was upheld.
McClung wrote the decision for the majority and here are some of the controversial quotes:
- He commented that her clothing (shorts and a t-shirt) was not conservative enough for a job
interview. it must be pointed out that the complainant did not present herself to Ewanchuk
or enter his trailer in a bonnet and crinolines.
- Regarding Sarahs past sexual history and her lifestyle (noting that she had a 6 month old baby
and lived her with boyfriend and another couple): he remarked that she was not lost on her way
home from church
- Justice McClung described Ewanchuks actions as far less criminal than hormonal. He was
also critical of Sarahs decision to report the incident to police and suggested advances like Steves
were better dealt with by a well-chosen expletive, a slap in the face, or if necessary, a welldirected knee.
The Supreme Court of Canada
- The SCC overturned both the trial court and Court of Appeal decisions and found Ewanchuk guilty
of sexual assault. The Supreme Court was deeply concerned about some of the harmful
stereotypes about women that had been perpetuated throughout the trial process and wanted to
set them straight.
The Judges quoted other authors who wrote about rape myths:
Myths of rape include the view that women fantasise about being rape victims; that women mean 'yes'
even when they say 'no'; that any woman could successfully resist a rapist if she really wished to; that the
sexually experienced do not suffer harms when raped (or at least suffer lesser harms than the sexually
'innocent'); that women often deserve to be raped on account of their conduct, dress, and demeanour; that
rape by a stranger is worse than one by an acquaintance. Stereotypes of sexuality include the view of
women as passive, disposed submissively to surrender to the sexual advances of active men, the view that
sexual love consists in the 'possession' by a man of a woman, etc.
McLachlin CJC:
stereotypical assumptions lie at the heart of what went wrong in this case. The [false] defence
of implied consent...as applied in this case, rests on the assumption that unless a woman
protests or resists, she should be "deemed" to consent
The idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. Such
stereotypical assumptions find their roots in many cultures, including our own. They no longer,
however, find a place in Canadian law.

Sexual Assault and Implied consent: R. v. Ewanchuk [1999] 1 S.C.R. 330


Discussion:
- Why are comments about implied consent so dangerous? (if we assume that women consent to
their attack unless they too are violent, are we encouraging violence? Will more women be injured?
Would this lead to more severe injuries than previously would have occurred? Does being violent
with someone twice your size and weight accomplish anything?)
- Is it fair to say that because of the way a woman dressest, she deserves for men to take advantage
of her? Why or why not? Is this idea still prevalent in our society? Where do you see this?
- How do we break the ideas about implied consent, and that women who dress or act a certain way
deserve to be treated in a certain way?
- Who should have the burden of re-writing the way society thinks about women?
Bottom Line:
- The law does not allow for IMPLIED CONSENT.
- Refer back to the definition of CONSENT need to be able to give a yes freely, no fear
- There is either consent, or no consent and it is up to the person who NEEDS consent to make sure
that they have it. Not up to the victim, but up to the attacker to ask if what they are doing is okay.
** No means No, Silence means No, sniffles means no, maybe later means no!
Anything other than a freely given YES according to Canadian Law means NO!
Discussion Questions:
- Which Court do you agree with? And Why?
- Does this look and feel like discrimination on the basis of sex? Something else?
- Are there other types of discrimination that would be harder to see or recognise than this one?
o What might those look like?
- How can we guard against discrimination?
- Who has the responsibility to end discrimination?