Robson Crim Legal Blog

Does there not need to be consistency in decisions by a body like the Canadian Judicial Council? How can you reconcile judicial decisions where the Council recommends removal of judges for victim-blaming comments with decisions where comments of a similar nature, reinforcing the same stereotypes, did not result in the same outcome?The purpose of this commentary is to compare and contrast two high profile cases, R v. Wagar, and R v. Ewanchuk.

The Supreme Court of Canada described the complex relationship between consent, sections 265 and 273 of the Criminal Code, and the parties to a sexual assault offence in R v Ewanchuk and R v A(J). As demands for consensual participation continue to grow, it is timely to review how Canadian courts consider consent in the context of sexual assault offences.

Over the past decade the law of sexual assault and legislative changes governing this section of the law has evolved considerably, but this does not mean that the results are being shown in the courtroom. It has been over ten years since R v Ewanchuk, and a positive note to come out of the decision in this case is that the Supreme Court of Canada cemented that there is no defence of implied consent to sexual assault in Canadian law.

Unfortunately, in many of the decisions in sexual assault cases the reasons that some trial judges have relied on are completely unsavoury and flat out rude and false. They add insult to injury by giving breath to the twin-myth reasoning that is rampant in sexual assault cases and try to blend stereotypes about women into the law.