R v Ewanchuk

Ewanchuk rejected the defence of implied consent in sexual assault. Consent under s.273.1 of the Criminal Code is the voluntary agreement of the complainant to engage in the sexual activity in question. The actus reus is determined by the complainant's subjective state of mind. The mens rea requires the accused's belief that the complainant communicated consent.

Ewanchuk progressively initiated sexual touching during a job interview in his trailer. The complainant said "no" several times; he persisted; she did not physically resist for fear. He was acquitted at trial on the basis of "implied consent". The Court of Appeal upheld; the SCC reversed.

Is implied consent a defence to sexual assault?

No. Conviction substituted.

There is no defence of implied consent in Canadian sexual-assault law. Actus reus consent is the complainant's subjective state of mind. Mens rea requires belief that consent was communicated by words or actions; mistaken belief based on silence, ambiguous conduct, or passivity is not honest mistake.

Major J held that s.273.1(2) excludes apparent consent obtained through fear, abuse of trust or power, expressed lack of agreement, or where the complainant's capacity is impaired. L'Heureux-Dubé J's concurrence is widely cited for its analysis of myths about sexual-assault complainants.

Foundational sexual-assault case. Reinforced by R v JA (2011, no consent in advance to acts during unconsciousness) and R v Barton (2019, prior sexual history evidence). Underpins the modern Canadian approach.

R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC).

Lamer CJ, L'Heureux-Dubé J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J, Bastarache J, Binnie J