Nov 27, 2014

R v Ewanchuk (1999)

R. v. Ewanchuk, [1999] 1 SCR 330



FACTS:

The accused made on and off sexual advances on a girl where the victim would say no each time. Eventually she became afraid and less resitant. The trial judge acquitted the accused. He characterized the accused’s defence as one of “implied consent” because the victim didn't make her fear known.



ISSUE

Is implied consent an available defence in Canadian sexual assault cases?



HELD

No. Crown’s appeal allowed.



RATIO:

The doctrine of implied consent is not a part of sexual intercourse. The complainant either consented or did not.


NOTES

When the trial judge decided that she wasn’t consenting, that’s the end of the actus reus issue.


The issue is whether the accused could have been led to believe from actions or words by the complainant as to consent. The accused failed to take the proper steps to insure consent.