Vancouver Province
for March 7, 1999

So no now means NO! So saith the Supreme Court of Canada in Regina vs. Ewanchuk. Where it was once said that parliament can make a man a woman and vice versa, now the Supreme Court tells us that several million years of social experience can be dashed on the floor of the courthouse never to surface again.

I’ve no doubt this accused deserves what he gets. He sounds like a creep although that he did back off every time his victim said no. And I’m on the side of Mr Justice McClung in his spat with Madame Justice Claire L’Hereux-Dube. The Supreme Court of Canada has gone from a dignified, quiet court of last resort to a bench of politically active social workers who can’t take any criticism themselves but, if the Ewanchuk case is anything to go on, have no compunction about heaping abuse on others. Indeed, neither judge behaved with the dignity way we’ve come to expect of the Bench.

But what about this social code the Supreme Court has laid down. Does "no" always mean "no"? Obviously the Canadian Council of Women thinks so for they are trying to hail Judge McClure before the Canadian Judicial Council which includes the Madame Justice’s colleagues. Ah, Rafe, but that’s not fair. We all know that when people become judges they automatically divest themselves of all mortal weakness and can easily judge fairly someone who is accused of badmouthing one of their colleagues. Of course they can.

One reason we have juries in this system is that they bring to the judicial process the common sense of the community at large. They know something about boys and girls, hopping hormones and back seat wrestling matches. They don’t wear ermine gowns after their chauffeur delivers them to work and they don’t drink and dine in the best exclusive clubs in the land. They play their golf at McCleery not Capilano and they understand how real people communicate – especially how they communicate when the mating mood is upon the scene. This is why juries are better judges of the facts than judges are.

Of course "no" means "no" if a man asks a woman to take off her clothes and make love and she declines. I don’t want to shock our judges any more than I have to but the act of making love is often preceded by a good deal of bargaining done in awkward positions with much more body language and innuendo than straight talk. It is not – I’m reliably informed by those young enough to remember these things – a series of serious questions followed by time for reflection and then answers.

I would like to ask all the boys in the audience this question – be honest now. Did you ever steal a kiss? Did you ever, without asking first, let your hand, oh so unobtrusively, slip onto a girls breasts, or even up her skirt a little ways? And now for the girls. Have you ever told a boy you didn’t want to kiss him, or have his hand on your breast or elsewhere, and then let him do as he wished? Now I exclude the National Council of Women from that question but come on, ladies (a non pc word, I’m told) tell old Uncle Rafe the truth. Did you ever say "no" meaning "give me a little time to make up my mind?"

The point is this. You cannot codify human behaviour in the manner the Supreme Court of Canada wishes. Of course we quite properly proscribe sexual assault. It has no place in our society. I’m surprised there was any doubt in the Ewanchuk case because it was clear from the circumstances that this young lady meant no. But what is assault and what is petting is a very subjective question.

Does this now mean that every bad sex experience will be subject to post coital review and the weapon of "no-means-no" available to any woman who wakes up in a strange bed after a night of partying? Is this absurd one-liner to be applied literally so that every woman has the right to nail a man for a stolen kiss, a touched nipple or a crotch rub because specific permission was not granted? Will swains be required to get a woman to sign a release of all claims before buying her a drink in a bar?.

As Mr Micawber said, "if the law says that, then the law is an ass."