With extra time on my hands during this COVID era, I found myself looking up some horrendous U.S. Supreme Court decisions. I started with this list:

1. Dred Scott v. Sanford(1857): Hands down the worst Supreme Court decision ever, Dred Scott held that African Americans, whether free men or slaves, could not be considered American citizens. The ruling undid the Missouri Compromise, barred laws that would free slaves, and all but guaranteed that there would be no political solution to slavery. The opinion even included a ridiculous “parade of horribles” that would appear if Scott were recognized as a citizen, unspeakable scenarios like African Americans being able to vacation, hold public meetings, and exercise their free speech rights.

2. Buck v. Bell(1927): “Eugenics? Yes, please!” the Court declared in this terrible decision which still stands as good law. In an 8-1 decision written by Justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.” Justice Holmes ruled that “society can prevent those who are manifestly unfit from continuing their kind” and ended the opinion by declaring that “three generations of imbeciles are enough.”

3. Korematsu v. United States(1944): Here, the Supreme Court upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens. In a cruel and ironic twist, this was also the first time the Court applied strict scrutiny to racial discrimination by the U.S. government, belying the idea that strict scrutiny is “strict in theory, fatal in fact.”

4. Plessy v. Ferguson(1896): The Court’s famous “separate but equal” ruling upheld state segregation laws. In doing so, the Court made sure that the gains of the post-Civil War reconstruction era were quickly replaced by decades of Jim Crow laws. […]

It made me think of horrible cases in Canadian jurisprudence. There are many doozies, like the wrongful conviction cases of R. v. Milgaard, 1971 CanLII 792 (SK CA), leave to appeal to S.C.C. ref’d (1971), 4 C.C.C.; (2d) 566; Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC); R. v. Sophonow, 1984 CanLII 124 (SCC). The worst of all is definitely R. v. Ewanchuk, 1999 CanLII 711 (SCC) – it was a blatant wrongful conviction by our Supreme Court of Canada, and it has been leading to countless wrongful convictions over the past two decades in courts across this country.

Before I get into the nitty-gritty of Ewanchuk, I thought I’d give a brief background and some other comments: an acquittal for sexual assault, followed by an appeal dismissed at the Alberta Court of Appeal, after which a unanimous reversal at the Supreme Court. Instead of a retrial, a conviction was entered. It included very harsh criticism by Justice L’Heureux-Dubé of Justice McClung, then return rhetoric, followed by an apology from McClung. CJC complaints were made all around, but the CJC had the sense (then, at least) to not do anything. There was intense debate – those opposed to the Supreme Court’s view were few and far between, and best represented by Edward Greenspan, a world-renowned criminal defence lawyer from Ontario.

Note that in the more recent Judge Camp (of Wagar, or “knees together” infamy) public lynching, no one defended Judge Camp (perhaps in part because there was no written decision at the lower court, transcripts were not publicly available, and the agenda-driven academics bringing the complaint were hardly fair to him – notwithstanding the “ethics” credentials of one of them). Things have definitely gotten worse since Ewanchuk.

In “The New Truth: Victims Never Lie” (by Edward Greenspan, Q.C.) – an excellent 2001 article and starting point on the problems in sexual assault law – some of which were mentioned by Judge Camp in Wagar for which he was unceremoniously dumped by the CJC  less than two decades later – and also quoted very briefly in Professor Elaine Craig [“Craig”] in her horrendous 2018 book Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, which I review here. This gem from Greenspan, for example:

Evidence of a prior consensual relationship between a defendant and a complainant is, of course, not conclusive proof of innocence. A man can certainly sexually assault a woman with whom he has engaged in consensual sex, and the prior sexual conduct does not justify, or even minimize, the crime. But surely the prior relationship is relevant evidence for the jury to consider as to whether the sexual encounter at issue was a continuation of the consensual relationship or a sexual assault. To me, this is a self-evident truth. To require the jury to decide the case as if it were a dispute between two strangers is to deny the fact-finder the essential context from which to judge who is lying and who is telling the truth. The notion that sexual assault victims deserve heightened protection begs the critical question: “Was the complainant indeed a sexual assault victim as she contended or was the defendant the victim of a false accusation as he contended?” Under our constitutional presumption of innocence, the legal system cannot assume the former in justifying a rule of evidence that denies the defendant the right to prove the latter. […]

What has not been given due consideration is what cost will be paid by according equal weight to the rights of a complainant. The exclusion of factually relevant evidence relating to prior sexual history which may be embarrassing and thereby violate the rights of the complainant, will not only undermine the rights of the accused, it will undermine the very essence of our criminal justice system whose ultimate goal it is to obtain the truth. While balancing of rights may work in other contexts, balancing in the criminal justice system distorts the process.

As far as I’m aware, Greenspan’s article has never been cited by our Supreme Court, nor any other Canadian court. In contrast, Craig’s work has been cited multiple times twice by our Supreme Court in 2019 alone, and already at least once in 2020.

For more problems on sexual assault law in Canada, start with this, this and this, the latter of which is briefly quoted in Craig.

Greenspan’s powerful editorial – also quoted in Craig, albeit selectively, like everything else she quotes – is almost prophetic in terms of his reference to complaints to the CJC; excerpt below – emphasis added:)

The profound reaction of the legal community, lining up on Judge L’Heureux-Dube’s side and ignoring the fact that her hurtful and thoroughly unnecessary words started the battle, is a striking example of how politics has taken over the issues surrounding sexual assault. It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. I deplore any attempt to use the Canadian Judicial Council as an agent of the women’s movement, through the filing of complaints against judges whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. I predicted a long time ago a judicial embracing of the feminist perspective. But to call for Judge McClung’s removal or censure means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hijacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them. That no one in academia or legal circles has stood up for Judge McClung to date is shocking.

Judge L’Heureux-Dube was hell-bent on re-educating Judge McClung, bullying and coercing him into looking at everything from her point of view. She raked him over the coals for making remarks that may, in fact, be accurate in the given case. I don’t know. But just as he had no empirical evidence to support his view (if you discount all of human history), she has no empirical evidence to say what she says (if you discount Catharine MacKinnon’s collected works). Calling for his censure or removal from the bench is nothing but an attempt to intimidate the judiciary.

A former president of Yale University once said, “There occurs at times, a tyranny of group self righteousness, manifesting itself in a rage to ideological or dogmatic purity.” Madame Justice L’Heureux-Dube has shown an astounding insensitivity and an inability to conceive of any concepts outside her own terms of reference and has thereby disgraced the Supreme Court. Judge McClung may not have done anything to remove the stain. In fact, his words may have added to the stain. But don’t talk of removing him from office. Don’t talk of censure. Likewise, don’t censure her and don’t remove her. Let the record show that she is not a very nice person and let the public debate ask the only question that matters: Does the Supreme Court of Canada care so little about its own reputation that it could not persuade Judge L’Heureux-Dube to rewrite her judgment before she issued it, so as not to disgrace the court?

Also, in Greenspans’ follow-up, emphasis added (responding to this idiotic article):

– Judge Kozinski calls the Ewanchuk case the “now famous ‘no means no’ case.” For the life of me, I cannot understand how that expression applies to this case. For the information of Judge Kozinski, in Canada nobody has a problem with ‘no means no.’ Except sexual offenders. The problem is with “yes” (and perhaps also “maybe”) meaning “no.” The problem is that if a woman decides in retrospect that her demeanor, actions, and words that suggested “yes” or “maybe” ought to be disregarded, and that what she really meant was “no” in her mind, that is enough to convict someone of sexual assault. According to Justice L’Heureux-Dube, the issue is determined by a purely subjective test of what is in the complainant’s mind. The judge has the option of finding: (a) the woman consented in her mind; or (b) the woman didn’t consent in her mind. To choose, the judge must be a mind reader. If a trial judge believes the woman had “no” in her mind, the trial judge must disregard the woman’s demeanor, actions and words, which suggest the opposite. That is no longer an objective test. It is not even a test based on basic common sense. […]

What Justice McClung suggested was that a trier of fact is entitled to take into account all surrounding circumstances in order to determine the veracity of anyone’s testimony. Putting the matter into context is something that occurs in all trials, except sexual assault trials, which have now been isolated in a class of their own. […]

In Canada, common sense is supposed to have a place in the courtroom. All Justice McClung did was to look at two people’s conduct to determine whether one of those parties could be found guilty of a crime beyond a reasonable doubt. Only in a world of abstract ideology are female complainants immune to ordinary methods of inquiry and analysis. Only in such a world does applying common sense run the risk of being accused of blaming the victim — a charge only slightly less serious than sexual assault itself in the lexicon of ideological feminism. […]

When I chose to write on this subject, the National Council of Women and other feminist pressure groups were on their way to mau mau the Canadian Judicial Council, to censure, remove, or otherwise sanction Justice McClung, not for his intemperate letter for which he apologized and which was merely an excuse, but for his refusal to internalize feminist thought into his legal analysis. He had to go because of his refusal to accept feminist dogma. Apparently, in this area in Canada, there can be no differences of opinion. That’s why I weighed in to the debate.

In Canada, sexual assault trials still occur in the courtroom, not in the well of the Senate. In this country, we still believe that justice is supposed to be blind. Legal debates should not be politicized. In Canada, the meaning of sexual assault isn’t decided by Republican or Democratic agendas, or feminist or sexist agendas for that matter. Politicizing legal issues of sexual assault can only give rise to gender warfare. After the Anita Hill/Clarence Thomas hearings, it seemed that the United States chose not to completely subordinate legal thought to the battle of the sexes, yet that seems to be Judge Kozinski’s specialty. If for this reason, Judge Kozinski does not make it to the United States Supreme Court, perhaps there will be a place for him on ours.

Note that REAL complained to the CJC about L’Heureux-Dubé: see here. Thankfully, CJC found no problems for both judges, finding that McClung’s comments both on and off the bench did not display bias against women: see here. If this had happened in the last decade or so, I’m certain he would have been tarred and feathered – both by the CJC and everyone else.

It’s a shame we don’t have leaders like Greenspan today, and that the trash spouted from the likes of Craig appear to be all that matters in criminal law in this country today. Note that Craig absolutely trashes Greenspan in her book – which alone is enough to tell me her book is absolute hogwash. I think it’s a tribute to be lambasted by Craig – certainly not one needed by Greenspan, though.

Now for the nitty gritty of Ewanchuk:

Anyone who went to law school in Canada is very familiar with R. v. Ewanchuk, 1999 CanLII 711 (SCC). If you’re like me, you were indoctrinated taught the case in first-year criminal law, with a lot of “tsk tsk-ing” about McClung (a descendant of Nellie McClung – no less!) and how stupid his decision was and how mean he was to L’Heureux-Dubé.

The context of the case included a 2.5 hour visit (a job interview, apparently): context not at all clear that assault occurred. Seems more like a mutual flirting, where accused slightly overstepped boundaries. If guilty of anything, likely a “non-major sexual assault” – see facts recited in para. 2 – Court of Appeal case, indexed as R. v. Ewanchuk, 1998 ABCA 52 (CanLII).

Whether fear was a factor – the complainant said there was – is dubious. Trial judge (Moore, recited at para. 2, CA) found the fear to be entirely credible – it merely wasn’t communicated at all. I suspect that’s a “generous” interpretation of the evidence, and that it’s not at all clear that fear – communicated or otherwise – existed. Of course, the dissent in the Court of Appeal as well as all of the Supreme Court took full advantage of this “concession” and insisted that once fear was found, a conviction should follow.

I’ll quote extensively below, from Ewanchuk at both the CA and SCC, along with some comments:

I’ll quote from McClung’s majority decision at the CA:

[4]      The complainant’s television-suggested plan (from the evidence drawn from the Family Channel) to rebuff Ewanchuk by a display of a bravura confidence was her choice and it was a choice for which she cannot be criticized. But it is not clear from the evidence that her inner concerns emanated from what the accused Ewanchuk said or did or were influenced by what she had learned on television.

I will gloss over the “bonnet and crinolines” comment in para. 4 – that horse has been beaten well to death, although it’s certainly been overused and abused by critics of McClung.

[5]      Certainly the complainant was afraid of Ewanchuk as the trial judge found. But her concerns were turned inward. She was afraid, but she wanted Ewanchuk to think otherwise. She succeeded. Yet it seems that her suppressed concerns about the possibility of force from Ewanchuk were misplaced. In this the trial judge was mindful of the girl’s evidence that during each of three clumsy passes by Ewanchuk, when she said “No!” he promptly backed off, while assuring her at least once, that he was “not that kind of person” and “that she needn’t worry” and that he was a man of restraint. When she finally said she wanted to leave the vehicle he neither argued against it or materially obstructed her, delaying her exit. Again her wishes prevailed. The trailer of the vehicle was indeed his woodworking workshop and she entered it under no illusions or coercion from him. The complainant feared the door was locked. There was no evidence that it was. Clearly it could be latched from the inside, but any conclusion that it was under Ewanchuk’s control alone is speculative at best. The complainant had no difficulty leaving the trailer. In this it may be noteworthy that Ewanchuk was never charged with unlawful confinement and it may be assumed that the investigating police examined the trailer and the locking devices on its door. […]

[7]      It is sufficient to say that unless clearly compelled to do so by statute trial judges or juries are not obliged to assume that the resolution of the issue of consent or its absence in these cases becomes a completely internal and subjective exercise reserved to the  complainant alone — an exercise that is retrospective, optional and silent, and one perhaps in contravention of the objective facts underlying the case. To exclude the belief of the accused from any contribution to the consent issue (and quite possibly his own fate) cuts across enshrined Canadian criminal law precepts and renders the law uncertain, inconsistent and resented. Every right-minded Canadian, male or female, deplores violence against women. But even the pursuit of a violence-free society must not be allowed to repudiate, or even dilute, the entrenched and statutory safeguards of our jurisprudence which have long and fairly protected those accused of serious crime. Included must be the rights of those who have stood the trial of such accusations and have won their acquittals. […]

[11]   Three overtures were made by Ewanchuk. The first two were marginally identifiable, if at all, as sexual in nature. They involved mutual body massages which, while they neared her sexual organs, were not in contact with them. Nonetheless, the last was a clearly sexual activity; a deliberate exposure of his sexual anatomy as he rubbed himself against her clothed pelvic area. This performance, if viewed in isolation (which the judge did not, apparently viewing the act as one that was not severable from the context of all the preceding consensual activity, some of it on the floor of the trailer) would hardly raise Ewanchuk’s stature in the pantheon of chivalric behaviour, but it did take place in private and following her protest — “No!” — led to nothing. The record would indicate that the one clearly sexual activity in the case ended swiftly with her injunctive “No!”.

[12]   It is right that we be constantly reminded that sexual assault can intractably erode the present and future integrity of its victims. Clearly this is so. Yet we must also remain aware that nothing can destroy a life so utterly as an extended term of imprisonment following a precipitately decided sexual assault conviction. In the search for proof of guilt, sloganeering such as “No means No!”, “Zero Tolerance!”, and “Take back the night!”  which, while they marshall desired social ideals, are no safe substitute for the orderly and objective judicial application of Canada’s criminal statutes.

[15]   Yet, if review of the evidence that supports the trial judge’s doubts about consent in this case is called for, it may be found in the following. The advances that are now said to be criminally assaultive were preceded by an exchange of consensual body massages, partially on the floor of the trailer, hugs and assurances of trust and restraint, as well as a gift of $100.00 that arose when the complainant advised Ewanchuk that money being in short supply in her home, she was hard up. Beyond that (and somewhat inconsistent with an appellate profile of Ewanchuk as a relentless sexual predator) every advance he made to her stopped when she spoke against it. He even supplied her with his correct name, spelling it for her as she wrote it down. He did not confine her, nor did he lie to her. There was no evidence of an assault or even its threat.

[16]   What was the Crown’s onus?  It must prove mens rea.

“The mens rea for sexual assault is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or wilfully blind to, the fact that the complainant was not consenting to that touching. […]

[19]   It is said that because the accused did not testify no finding as to the innocence of his intent should have been made in his favour. But that finding can be inferred, or a doubt raised within it, from the Crown evidence alone as it can be done in any other criminal prosecution. It was made here from the sum of the evidence presented against Ewanchuk, weighed by the trial judge and which, in his assessment, fell short of adequate proof of guilt. That is enough. The 1992 parliamentary changes (Bill C-49) to proof of consent in sexual assault cases did not repeal the protections allocated to the Canadian accused which have been long embedded in the Canada Evidence Act, R.S. c. E-10. Nor did they re-define the right of appellate courts to fossick guilt from fact-driven acquittals. […]

[21]   In my reading of the trial record, this Crown appeal must be dismissed. Beyond the error of law issue, the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal. In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee. What this accused tried to initiate hardly qualifies him for the lasting stigma of a conviction for sexual assault and Alberta’s current bullet-train removal to the penitentiary for prolonged shrift. [I suppose Alberta’s draconian sentencing approaches are not anything new…

Sidenote: after the SCC reversed the acquittals and entered a conviction, the sentencing judge sentenced the accused to 1 year of jail, and considered a conditional sentence: CBC article. For more context, in the subsequent sentencing decision, see R. v. S.B.E., [2000] A.J. No. 1275 – QuickLaw), Crown had asked for 5 years of jail, then appeared to reduce their request somewhat (para. 28). Both Crown and defence appealed the sentence (R. v. Ewanchuk, 2002 ABCA 95 (CanLII)) and the Alberta Court of Appeal – to her credit, not including Fraser CJ or any other jurists sitting on the original ABCA decision – increased the sentence to 2 years (para. 87).]

Fraser CJ’s dissent (emphasis in original) at CA:

49 Consent to sexual activity may be expressed through words or in writing or implied through conduct.

[50]   The trial judge began his analysis with a misunderstanding of the legal test for valid “consent”. He then proceeded, wrongly, to equate submission out of fear, where that fear has not been communicated to an accused, with the complainant’s implied consent. Not only is this, by itself, an error in law, but the trial judge then compounded these errors by imposing a strictly objective test on the assessment of the fear sustained by the complainant. And then, he went even further by ignoring, as part of the totality of the events which transpired here, the legal effect of the “No’s” which, according to his own fact findings, the complainant uttered. […]

[56]   Since 1992, therefore, the mistake of fact defence is not available to an accused unless he first took “reasonable steps” to ascertain consent: see R. v. Redcliffe (7 April 1995) No. 95-18016 (Ont. C.A.); J. McInnes and C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) U.B.C. L. Rev. 341; and P. Hughes, “From a Woman’s Point of View” (1993) 42 U.N.B. L.J. 341. The “reasonable steps” provision imposes a positive duty on a person intent on sexual activity to make reasonable efforts to determine that he has the voluntary agreement of the other person to what is about to take place. Unless and until that threshold has been crossed, the defence of mistake of fact is not available to an accused. […]

[58]   Parliament’s decision to impose this evidentiary predicate to an assertion of the defence of mistake of fact was in part in response to the increasing frequency with which that defence was being asserted in sexual assault cases even where no steps had first been taken by an accused to ascertain whether the complainant was consenting. Taken together with Parliament’s decision to define “consent” in this context, these amendments represent further legislative steps to overcome the apparent unwillingness by some to let go of the debunked notion that unless a complainant physically resisted or expressed verbal opposition to sexual activity, an accused was entitled to assume that consent existed. Instead, the amendments place the responsibility to ascertain the presence of consent to sexual activity precisely where it belongs — on the person, male or female, who wishes to initiate sexual contact with another person.

[59]   Parliament also included for the first time ever (in s. 273.1) a statutory definition of consent in sexual assault cases. “Consent” now means the voluntary agreement of the complainant to engage in the sexual activity in question. By defining “consent” to mean the voluntary agreement to engage in sexual activity, Parliament signalled that the focus should henceforth be on whether the complainant positively affirmed her willingness to participate in the subject sexual activity as opposed to whether she expressly rejected it. Parliament understood very well that a definition of “consent” was required to overcome the historical tendency by some judges to treat a complainant’s silence or non-resistance as “implied consent”. It followed in the minds of those who took this view that the Crown could not meet its burden of proving lack of consent by showing that the complainant did not give her affirmative consent. This was not enough. What the Crown had to do, according to those who endorsed this approach, was to prove that the complainant had expressed her non-consent. In other words, did she say “No” or give the accused a slap in the face or a well-placed knee in the groin or some other incontrovertible overt “No” signal? If she did not, then her consent to what transpired could be presumptively implied by the judge as well as the perpetrator — and often was.

[60]   How this theory operated in practice in some courtrooms prior to the 1992 amendments has been well-explained by R. Cornaviera in “The Reform of Sexual Assault Laws”, (1993) 2 Crown’s Newsl. 1 at 18-19:

“The inquiry into whether a complainant consented to sexual acts is vulnerable to sexist stereotypes. Rape mythology thrives in the absence of a statutory definition of consent through the vehicle of “implied consent”. The judicially created “theory of implied consent” is commonly applied in the context of sexual assault offences. The use of “implied consent theory” permits the perpetuation of rape mythology by presuming that consent to sexual touching exists ab initio and continues to exist until the woman successfully persuades the aggressor that she does not consent. Thus, consent may be implied in the absence of clear and unequivocal non consent (usually resistance) … [Footnotes omitted.]”

Under this theory, because women were treated as being available at all times for sexual activity, because the “default” position was assumed to be consent, the focus was — wrongly — on whether the woman expressed her dissent rather than on whether she gave her assent: See J. McInnes & C. Boyle “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341 at 353 n. 30, 357 n.38.

[61]   Not all judges took this view of the law: see R. v. M. (M.L.) 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3 which is based on the law as it existed prior to the 1992 amendments. But sufficient numbers did that Parliament saw fit to put the matter beyond doubt in 1992 by expressly defining consent to mean “voluntary agreement” to engage in the sexual activity. Thus, it follows that it is no longer appropriate to simply ask whether the woman said “No” or actively resisted sexual advances (here the trial judge concedes that the failure to resist was driven by genuine fear and that the woman did say “No” more than once). The real inquiry is whether she said “Yes” (or its equivalent), either expressly in words or in writing or impliedly by her conduct. Viewed in this light, the positive definition of consent contained in s. 273.1 of the Code, stressing as it does the equality of responsibility in sexual relations, is in keeping with several academic articles urging that the law recognize and protect women’s sexual autonomy: See e.g. R. Cairns Way, “Bill C-49 and the Politics of Constitutionalized Fault” (1993) 42 U.N.B. L.J. 325; M.T. Kasubhai, “Destabilizing Power in Rape: Why Consent Theory in Rape Law is Turned on its Head” (1996) 11 Wisc. Women’s L.J. 37; G. MacDonald & K. Gallagher, “The Myth of Consenting Adults: The New Sexual Assault Provisions” (1993) 42 U.N.B. L.J. 373; H.M. Malm, “The Ontological Status of Consent and its Implications for the Law on Rape” (1996) 2 Legal Theory 147; and J. McInnes & C. Boyle, “Judging Sexual Assault Law Against a Standard of Equality” (1995) 29 U.B.C. L. Rev. 341.

[62]   What must be emphasized is that while a complainant’s consent may be expressed or implied, it still must be her actual consent. And in order to determine whether she gave either her expressed or implied consent, one must have regard to the state of mind of the complainant only. That this is so is evident from the fact that the definition of “consent” refers to the voluntary agreement of the complainant to engage in the impugned activity. Thus, it is to her state of mind that the inquiry must be directed. That inquiry into voluntariness must focus on the impact of the accused’s behaviour on the complainant at the relevant time and in the situation in which she found herself. […]

[66]   One of the difficulties here is with the use of the term “implied consent” itself. Providing that the term is being used as a shorthand way of saying actual consent implied through conduct, it is a legitimate use of the term. But the problem is that the term has an unfortunate history, meaning therefore that it is capable of being misinterpreted. As noted earlier, there was a time when some were willing to “imply” a woman’s consent even in the absence of any evidence of actual consent on the basis that she did not resist or scream or scratch or do whatever else the trier of fact thought a true victim should have done. Thus, to the extent that this term suggests that judges can “imply” a complainant’s consent to sexual activity even where the evidence establishes that there was no actual consent, it is an inappropriate use of the term. Indeed, I would suggest that judges avoid the use of the term “implied consent” in sexual assault cases so long as the lingering myths of victim resistance continue to find a welcome greeting in some courtrooms in this country.

[67]   What this all means is that while it is possible to speak of a complainant’s actual consent being implied or inferred through actions, as opposed to expressed through words, in both cases, the words or actions, taken in their context, must evince a voluntary agreement by the complainant to engage in the impugned sexual conduct. Simply, it must be real consent. It also means that it is wrong in law to assume that a woman gives her “implied consent” to sexual activity unless and until she overtly signals her non-consent. With the 1992 Code amendments, Parliament rejected this discredited theory of “implied consent”. It recognized that to presume that such “implied consent” exists denies women’s sexual autonomy, not to mention their Charter equality rights. Women in Canada are not walking around this country in a state of constant consent to sexual activity unless and until they say “No” or offer resistance to anyone who targets them for sexual activity.

[…] [70]   When one looks at the evidence here, the suggestion of implied consent is based on what the complainant did not do. The trial judge focuses on the complainant’s failure to “properly” express her fear, the implication being that this was necessary so that the accused could thereby deduce that she was not consenting to his sexual advances. In other words, the trial judge erred in assuming that in order to prove lack of consent, the Crown had to prove that the complainant had expressed her opposition to the conduct in which Ewanchuk was engaged.

[71]   The flaw in this approach is obvious. It presupposes that Ewanchuk was otherwise entitled to assume that the complainant was consenting until she communicated her non-consent. But Ewanchuk had no right to presume this consent absent some positive indication from the complainant that what she was interested in was sexual activity with him and not the job he purported to offer. I do not find any evidence of express consent here. Nor did the trial judge. Nor do I find any evidence, whether on the record or in the fact findings, from which consent to sexual activity by this complainant through her conduct can be properly implied. Once the trial judge here accepted, as he did, the complainant’s testimony that she was not a willing party to the sexual activity, that she submitted out of fear and in any event that she said “No” on at least two occasions before her final “No”, those findings in my view were dispositive of the issue before him. There was no actual consent by the complainant in this case, whether express or implied through conduct. Nor is there any basis in law for the trial judge to find a reasonable doubt on these facts.

Actually, the consent implied by conduct is fairly obvious here, and clearly addressed by McClung JA at para. 15. You’re entitled to disagree, but let’s not act like it’s obvious that no consent existed – it most certainly is not.

We get further derailed from there… Eventually:

[95]   Each “No” the complainant stated meant in law that any consent given (if any had in fact been given) was at an end. The complainant no longer wanted to engage in sexual activity (if she in fact ever did). There is no ambiguity in that statement. When a woman says “No” to unwanted sexual activity, she is not required to give a list, whether oral or written, of what the “No” includes. Nor is she required to utter “No” to every step of every sexual advance. One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. Any other interpretation of s. 273.1(2)(e) would fall prey to the rejected myth that “No” really means “Try harder”.

Clear and unequivocal yes? What happened to the consent implied by conduct that Fraser CJ appears to believe in (para. 61)? Is that only when “no” wasn’t mentioned at any point? Or does Fraser CJ merely contradict herself on a rather critical point within the same judgment? (Note, Major J. for the SCC tries to fix this disaster, as follows – para. 51: “I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.” Frankly, I take her words to mean something quite different.) Later, positive assent (rather than consent either express or implied) is suggested as required (emphasis in original):

[109] Those amendments make it clear that the mens rea for sexual assault includes touching a complainant in a sexual manner without having first received her positive assent to the activity. In this regard, I agree with Madam Justice Claire L’Heureux-Dubé’s analysis in R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at 864 which addresses the transformative nature of the 1992 amendments as they relate to mens rea: […]

Note the disturbing statement in the recent SCC pronouncement on consent in R. v. Goldfinch, 2019 SCC 38 (CanLII) (incidentally, I would argue, the “low-water” point for the SCC to date since Ewanchuk) at para. 44 (emphasis added): “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required” – also, mantra repeated in para. 73. It’s not surprising that we’ve ended up here, given the trajectory we’ve careened down since Ewanchuk.

The SCC case (cited some 1203 times on CanLII – unlike the ABCA decision cited a mere 18 times):

6-person majority (per Major J.)

The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.  While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.  If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

Per L’Heureux‑Dubé and Gonthier JJ (generally concurring with majority):

This case is not about consent, since none was given.  It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her.  The application of s. 265(3) requires an entirely subjective test.  As irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.

The question of implied consent should not have arisen.  The trial judge’s conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid.  This error does not derive from the findings of fact but from mythical assumptions.  It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.

The majority of the Court of Appeal also relied on inappropriate myths and stereotypes.  Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.

Finally and bizarrely, McLachlin J. adds brief separate concurring reasons, agreeing with L’Heureux Dubé.

Major J.:

29 While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.  If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

30 The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct.  The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent.  The accused’s perception of the complainant’s state of mind is not relevant.  That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

31 Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt.  Both he and the trial judge refer to this as “implied consent”.  It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions:  the complainant either consented or not.  There is no third option.  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.  The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them.  There is no defence of implied consent to sexual assault in Canadian law.

(b)      Application to the Present Case

32 In this case, the trial judge accepted the evidence of the complainant that she did not consent.  That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent.  As a result, he disregarded his previous finding that all the accused’s sexual touching was unwanted.  Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.

44 The defence of mistake is simply a denial of mens rea.  It does not impose any burden of proof upon the accused (see R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue.  Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant.  However, as a practical matter, this defence will usually arise in the evidence called by the accused.

L’Heureux Dubé:

85 I agree with Major J. that the application of s. 265(3) requires an entirely subjective test.  In my opinion, as irrational as a complainant’s motive might be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.  Accordingly, I agree with Fraser C.J. that any objective factor should be considered under the defence of honest but mistaken belief.

89 Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record.  Could it be to express that the complainant is not a virgin?  Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple?  These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.  Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character.

Since we’re being generous with interpreting the ABCA jurists’ words, I “take” McClung J. to have meant that the complainant was not a victim – she was essentially a willing participant, and her conduct and the entirety of the circumstances does not lead to the conclusion that she was afraid nor that she lacked consent to any of the activity.

I would suggest that wrongful convictions these days are at more than double-digits in terms of percentage of sexual assault convictions in Canada. We have the legacy of Ewanchuk, and the subsequent 20+ years of Supreme Court (and Alberta Court of Appeal) jurisprudence to thank.