Document Type

Article

Publication Date

1-1-2009

Keywords

sexual assault, consent, mistaken belief, Ewanchuk

Abstract

It has been a decade since the Supreme Court of Canada released its controversial decision in R. v. Ewanchuk. One of the central doctrinal issues raised by critics of Ewanchuk was a concern that it would not sufficiently allow for the mistaken belief defence in cases involving ‘morally innocent’ accused engaged in typical sexual overtures or in cases where the accused and complainant were in an ongoing sexual relationship at the time of the offence. A review of the reported cases, since 1998, demonstrates that the Ewanchuk analysis, properly interpreted, does not unjustly criminalize the progression of intimate behavior between genuinely consenting adults. Less promisingly, the post-Ewanchuk case law also suggests that in circumstances involving intimate partners or spouses, trial judges may be more likely to wrongly rely on the assumption that as between spouses the doctrine of implied consent still exists. Ewanchuk, it seems, has achieved better respect from the law for the sexual integrity of the intoxicated party-goer. The trial decisions discussed in the last section of this paper suggest Ewanchuk has been less able to achieve this with respect to the sexual integrity of wives and girlfriends.

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