Reading the ‘Ewanchuk’ Decision 20 Years Later- A Victim's Perspective

The topic of sexual violence continues to be a hot debate in the public sphere. One such discussion topic that continues to spark heated debate is the concept of ‘consent.’ The reason that this topic can cause quite a stir is because people around the globe differ in views about the definition of consent. For instance, some people believe in the notion of implied consent, some believe that ‘no means no’ and others take the approach that only ‘yes means yes.’ Having these discussions are important because they educate members of society on the law and they can adjust social norms.

When this topic erupts, I tend be a passive listener. Being a wallflower does not necessarily mean that I do not have an opinion on the topic. Quite the contrary, sometimes the passive listener has the most to say. You see amongst the sea of faces in the class room and in the public sphere, quiet people like me who have experienced sexual violence. This should not come as a shock. If I look around my class, statistically one in three of my female colleagues and one in six of my male colleagues have likely experienced some from of sexual violence in their lifetime. [1] Yet we remain silent. This is because at the core of sexual victimization, is the stigma associated with it. In fact, according to Statistics Canada, “sexual assault is one of the most underreported crimes. And the research has attributed this to a wide range of reasons, including the shame, guilt and stigma of sexual victimization.” [2]

Over the course of my studies, I have had the opportunity to read many cases on this topic. One of the most significant cases I have read in my academic career is the Supreme Court’s decision in R v Ewanchuk [3]. This was a significant case in Canada because it defined the law of consent. [4]

In Ewanchuk, a 17-year old girl went for a job interview inside a van. When she was inside the van, the accused closed the door and made sexual advances at her. When the girl would tell him no, Ewanchuk would stop, but than he would start back up again in escalating advances. At trial, she testified that she did not take further actions, though she said no at multiple times, to stop the sexual conduct and explained that her inability to leave or resist Ewanchuk’s sexual advances was because she feared what he might do to her.

Ewanchuk argued that she did not proceed to object to his actions, which constituted for some of the judges in lower courts, a notional defence of “implied consent.” Ewanchuk was acquitted at both the trial and at appeal level. The Supreme Court of Canada disagreed and held that there is no defence of “implied consent” in Canada [5] and he was convicted. The Majority unpacked the meaning of consent in sexual assault cases. There is an actus reus component; “consent” means the complainant in her mind wanted the sexual touching to take place, and was not fearful or coerced into providing the consent. Nonetheless, an accused can assert the mistaken belief in consent defence to demonstrate they did not have the mens rea for the offence due to a reasonably demonstrative misapprehension as to consent. For victims of sexual assault, this was a victory and a defining moment of positive change. It marked the start of the ‘no means no’ era. [6]

When I read the decision in Ewanchuk, I felt that the decision was lacking in its analysis on the actus rea component. In paragraph 39 the Supreme Court explains that:

If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective. [7]

I want to be clear, I think that the Supreme Court came to a good decision in Ewanchuk and I don’t believe that they erred in their decision. As a victim of a sexual crime, I wish that the jurisprudence would expand beyond the context of fear/duress and acknowledge the feelings of shame. For me, Ewanchuk perpetuates a stranger danger phenomenon. However, this is not often the case. According to Statistics Canada sexual assault offenders are often known to their victims. The data showed that “a friend, acquaintance or neighbour was the offender for 52% of sexual assault incidents, while a stranger was the offender for 44% of incidents.” [8]

“From a very young age we are taught to fear strangers. So, we grow up thinking we can pinpoint potential perpetrators—the creepy guy in the park, the man in the hoodie walking closely behind you. When we believe that these types of myths are reality, victims start to question what happened to them and are reluctant to report.” [9]

I can honestly tell you that fear was not the emotion that I held. I knew my perpetrator. Rather, I felt a deep sense of shame that followed me throughout my entire life. In addition to shame, I had an intense fear of the disapproval of others and a fear of being ostracized from friends and family. Gershen Kaufman, an expert on the emotion of shame stated in his book Shame: The Power of Caring, “Shame by its very nature, is humiliating.”[10]

The victim feels invaded and defiled, while simultaneously experiencing the indignity of being helpless and at the mercy of another person. Shame is a feeling deep within us of being exposed and unworthy. When we feel ashamed, we want to hide. Being shamed feels like being banished and unworthy to be around others. [11]

Victim’s advocate, Greg Gilhooly echoes my feelings. Gilhooly who was one of the first minor hockey players victimized by Graham James in the 1970s and 1980s, before James met and abused Sheldon Kennedy and Theo Fleury. Gilhooly who kept the abuse secret for years explained that the label triggered fears of being ostracized within hockey at the time. In Gilhooly’s book, I Am Nobody: Confronting the Sexually Abusive Coach Who Stole My Life, he explains that the abuse, turned him into “nobody at all.” “It stripped him of his self-esteem. It made him question his identity and his sexuality. It set him on a decades-long course of self-sabotage. He explains, I didn’t trust myself to understand who I was because I didn’t understand how I let this happen to me.” [12]

As a one-day inspiring lawyer I want to explain that I am not jumping on every victim’s rights movement. In fact, quite the contrary, I am a strong believer in the presumption of innocence, and I believe justice is a balancing act. However, for the law to evolve, “society needs to understand the offence better to ensure justice.” [13]

What ever happened to Ewanchuk? Ewanchuk, who was acquitted at two levels of Court before being convicted at the Supreme Court is now a prisoner incarcerated in Bowden Institution. After his release from prison from assaulting the 17-year-old girl, he went on to sexually assault an 8-year-old child, which resulted in a 16.5-year sentence. [14] This would be Ewanchuk's fifth sexual assault conviction.[15]

[1] “Statistics,” online: Sexual Assault Centre <http://sacha.ca/resources/statistics>.

[2] Shana Conroy & Adam Cotter, “Self-reported Sexual Assault in Canada, 2014,” (11 July 2017), Statistics Canada, online: <https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/14842-eng.htm>.

[3] R v Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330.

[4] Jeremy Barretto, Ten Years After R v Ewanchuk: Confirmation That No Means No, online: the Court <http://www.thecourt.ca/ten-years-after-r-v-ewanchuk-confirmed-no-means-no/>.

[5] Valerie Borodina, “R v Ewanchuk,” (27 March 2015), online: <https://prezi.com/z6imkbf-lwii/r-v-ewanchuk/>.

[6] Supra note 4.

[7] Supra note 3 at 39.

[8] Supra note 2.

[9] Shawn Fields, “Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders,” (2017) Wis L 149 Rev 429 at 429.

[10] Beverly Engel, “Why Don’t Victims of Sexual Harassment Come Forward Sooner?” (16 November 2017), online: Psychology Today <https://www.psychologytoday.com/ca/blog/the-compassion-chronicles/201711/why-dont-victims-sexual-harassment-come-forward-sooner>.

[11] Ibid.

[12] Nick Faris, “Greg Gilhooly Speaks Out: How One of Graham James First Alleged Victims Found Justice” (7 March 2018), National Post, online: <https://nationalpost.com/sports/hockey/greg-gilhooly-speaks-out-how-one-of-graham-james-first-alleged-victims-found-justice>.

[13] “A Lesson in Fixing a Flawed System, Lawyer, author and survivor Greg Gilhooly Spoke to law students on Criminal Justice Reform for Victims of Sexual Assault,” (22 March 2018), UM Today, online: <http://news.umanitoba.ca/a-lesson-in-fixing-a-flawed-system/>.

[14] R v Ewanchuk, 2010 ABCA 298, [2010] A.W.L.D. 4841 at para 1.

[15] Ewanchuk v Canada (Attorney General), 2017 ABQB 237, [2017] 9 W.W.R. 533 at para 1.