R. v. Ewanchuk – Consent in Sexual Assault Cases
How Consent Is Decided in Canadian Sexual Assault Cases
R. v. Ewanchuk is one of Canada’s leading cases about consent and sexual assault. The Supreme Court of Canada confirmed that there is no implied consent to sexual activity.
The court must decide whether the complainant actually consented to the specific sexual activity that took place. This can be especially important when the people involved are dating, married or in an intimate relationship.
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If you’ve been charged with sexual assault, call Nicholas Charitsis at 416-731-7113 to discuss what happened and how we can help you.
What Happened in R. v. Ewanchuk?
The case began in Edmonton in June 1994. A 17-year-old woman and her friend were approached by Mr. Ewanchuk in a shopping mall parking lot. He told them he operated a woodworking business and was looking for people to work at his displays in shopping malls. The next morning, he called their apartment and offered the 17-year-old an interview.
They met again at the mall and the job interview began in his van. She later described the conversation as polite and business-like. When she went outside to smoke a cigarette, Ewanchuk offered to show her some of his woodworking in a trailer attached to the van. She agreed. When she entered the trailer, she purposely left the door open. Ewanchuk followed her inside and closed it in a way that made her think it had been locked. She became afraid.
Ewanchuk then began touching her. The touching became increasingly sexual. She repeatedly told him “no.” He would stop when she objected, but after a short time he would begin again and the sexual contact would become more serious. The woman later explained that she was frightened and was trying not to make the situation worse.
Eventually, Ewanchuk opened the trailer door and she was able to leave. She walked home crying and told her roommate what had happened. Shortly afterward, Ewanchuk called the apartment to ask whether she was okay. She then called the police.
Police had an important piece of evidence that helped them find him. During the meeting, Ewanchuk had given the woman a brochure about his woodworking business, and his name and address were written on it. The investigating officer used that information to locate him at his home.
Police arrested him and he was charged with sexual assault.
Relevant Case Law:
R. v. Ewanchuk — Supreme Court of Canada ([1999] 1 S.C.R. 330)
View the full decision Supreme Court of Canada (Supreme Court of Canada)
What Happened at Mr. Ewanchuk’s Trial?
At trial, Mr. Ewanchuk denied that some of the sexual touching had happened. For the touching he admitted, he said it was consensual. The young woman gave a very different account. She testified that she repeatedly said “no” and did not agree to the sexual contact.
The trial judge had to decide whether the Crown had proven sexual assault beyond a reasonable doubt. The judge found Mr. Ewanchuk not guilty.
The judge accepted that the young woman did not actively consent to the sexual activity. However, he decided there was a possibility of “implied consent.” In other words, he believed her actions and the circumstances could suggest consent even though she had not actually communicated agreement.
That finding became one of the central issues when the case eventually reached the Supreme Court of Canada. The Supreme Court said the trial judge had made a legal error: there is no defence of implied consent in Canadian sexual assault law.
What Is Implied Consent?
Implied consent means, assuming that someone agreed to sexual activity because of their behaviour or the circumstances, even though they did not actually communicate their agreement.
What Did the Supreme Court Say About Consent?
The Supreme Court of Canada confirmed that consent is based on what the complainant actually wanted at the time of the sexual activity. The court must decide whether the complainant freely agreed to the sexual activity in question.
The Court made several important points about consent:
- Consent must actually exist. It cannot simply be assumed.
- Consent must relate to the specific sexual activity that took place.
- Agreeing to one sexual act does not mean agreeing to another.
- A person’s silence or lack of resistance does not automatically mean consent.
- There is no defence of implied consent in Canadian sexual assault law.
Once the court determines that the complainant did not consent, it must consider the accused person’s state of mind. This includes whether the accused knew there was no consent, was reckless about consent, or deliberately ignored the possibility that the complainant was not consenting.
The accused may also argue that they honestly believed the complainant was consenting. However, that is different from implied consent. The issue becomes what the accused honestly believed was communicated to them, and whether the law allows that belief to be relied upon in the circumstances.
Can Someone Honestly Believe There Was Consent?
Yes. In some sexual assault cases, an accused person may argue that they honestly believed the complainant was consenting. This is known as a mistaken belief in communicated consent.
This is different from implied consent. The accused cannot simply say they assumed the other person was consenting. The court looks at what was actually said or done and why the accused believed consent had been communicated.
The court may consider:
- What the complainant said or did.
- What the accused said or did.
- Whether consent was communicated to the accused.
- Whether the accused was reckless or ignored signs that there was no consent.
- Whether reasonable steps were taken to make sure the complainant was consenting.
In R. v. Ewanchuk, the Supreme Court explained that an honest belief in consent relates to the accused person’s state of mind. However, there must be evidence capable of supporting that belief. An accused cannot rely on assumptions about how a person would normally behave if they did not want sexual contact.
How Does R. v. Ewanchuk Apply to Domestic Assault Cases?
The rules about consent can also become important when sexual assault allegations involve spouses, dating partners or people in an intimate relationship. A relationship does not automatically mean that consent existed.
In some domestic assault cases, the accused may also face a sexual assault charge. The court must consider each allegation separately and decide whether the Crown can prove the charge beyond a reasonable doubt.
R. v. Ewanchuk makes it clear that consent to sexual activity cannot simply be assumed because two people were married, dating or had a previous sexual relationship. The court must consider whether there was consent to the specific sexual activity in question.
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FAQs About Sexual Assault and Consent
Can I Be Charged With Sexual Assault if We Were Dating or Married?
Yes. Being married, dating or in a sexual relationship does not automatically mean there was consent. Consent must exist for the specific sexual activity in question. A previous sexual relationship does not, by itself, prove consent on another occasion.
What if I Honestly Believed the Other Person Was Consenting?
An honest belief in communicated consent can be an issue in a sexual assault case. The court will look at what was actually said or done and why the accused believed consent had been communicated. Simply assuming that someone was consenting is not the same thing.
Does Someone Have to Say “No” for It to Be Sexual Assault?
No. The absence of the word “no” does not automatically mean there was consent. The court looks at whether the complainant actually agreed to the sexual activity. Silence or a lack of physical resistance does not, by itself, establish consent.
What Evidence Can Be Important in a Sexual Assault Case?
The evidence depends on what happened. It may include text messages, emails, social media messages, photographs, witness statements, medical evidence and police statements. At Charitsis Law, we examine the evidence for inconsistencies and information that may create reasonable doubt.
Can I Be Charged With Both Sexual Assault and Domestic Assault?
Yes. When allegations involve spouses, dating partners or former partners, police may lay more than one criminal charge. These can include sexual assault, domestic assault, uttering threats or other offences. Each charge must be considered separately, and the Crown must prove every charge beyond a reasonable doubt.
