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Ten Years after Ewanchuk the Art of Seduction is Alive and Well: An Examination of the Mistaken Belief in Consent Defence

Canadian Criminal Law Review, Vol. 13, No. 3, 2009

31 Pages Posted: 12 Nov 2009  

Elaine Craig

Dalhousie University - Schulich School of Law

Date Written: October 22, 2009

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.

Keywords: sexual assault, consent, mistaken belief, Ewanchuk

Suggested Citation

Craig, Elaine, Ten Years after Ewanchuk the Art of Seduction is Alive and Well: An Examination of the Mistaken Belief in Consent Defence (October 22, 2009). Canadian Criminal Law Review, Vol. 13, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1492625

Elaine Craig (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia
Canada

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