Review 

“Steve Ewanchuk fancied himself something of a Lothario. He encountered the seventeen-year-old complainant at an Edmonton mall and Ewanchuk suggested that she might be interested in joining him in his woodworking business.  The following day the young woman, wearing shorts and a T-shirt, met Ewanchuk in his van for a job interview.  Later they  repaired to his trailer where he closed the door.  Eventually the conversation turned to personal matters and Ewanchuk asked the complainant to give him a massage.  She massaged his shoulders for several minutes and he did the same for her. As the massaging progressed he tried to initiate more contact such as massaging her stomach and bring his hands underneath her breasts.  She stopped him and said ‘No’.   He stopped but shortly thereafter he tried a new tack....  Once again she told him to stop and he did so.”

At Ewanchuk’s trial, the complainant’s conduct was characterized as ‘implied consent’. Ewanchuk was acquitted.  Nevertheless, the Crown appealed the decision.   His Honour Mr. Justice John A. McClung of the Alberta Court of Appeal (the grandson of one of Canada’s women’s rights pioneers, Nellie McClung) agreed with the trial judge and upheld the acquittal.  Justice McClung described Ewanchuk’s conduct as ‘clumsy passes’ which, following her protest ‘No”, led to nothing.   Nevertheless, the Crown  appealed the two acquittals  to the Supreme Court of Canada which decided to convict Ewanchuk.    In particular, Madame Justice L’Heureux-Dube, a founding member of The Canadian Institute for the Advancement of Women (76-78) and a Canadian VP of the International Federation of Women Lawyers (91), unleashed a fury of controversy by criticizing Judge McClung’s reasoning.  In reply, he observed that L’Heureux -Dube’s husband had chosen suicide.  This almost obscured the central issue.  Patrick Brode picks up the threads.  By drawing comparisons with past cases  (R. v. Alberta Premier Robert Brownlee 1934) and present cases (R. v. B.C. cabinet minister Robin Blencoe 1995) he suggests that the law has regressed full circle.  The modern women’s movement may be the leading wave of a new "Victorianism" that threatens to erase much of the 20^th century gains made by women in areas of equality, marriage reform and suffrage.  In Brode’s view, this second wave of feminism, spearheaded by Madame Justice L’Heureux-Dube and the like, is a new "puritanism" that will foster new laws to prohibit or interfere with consensual sexual activities and restrict the liberties of both women and men.  “We have already reached a stage in Canada where the fruits of this new social purity movement would be considered extreme, even by Victorians” writes Brode.  Under the force of zero tolerance policies, medical associations, teacher’s associations, the Canadian Armed Forces, and others are leading the way to a more repressive society, the rules of which are held in distain by ordinary people.  He argues that even the lawmakers of the nineteenths century realized that there were limits on the law’s prerogative to intrude on private affairs. When seen in this context is seems that seduction law has not been eradicated but has only mutated and changed form.  Blencoe’s situation in 1995 was remarkably similar to Brownlee’s in 1934.  The mere accusation was enough to destroy both men but Brownlee was able to confront his accuser in open court, while Blencoe’s accusers demanded (and received) their privacy.

Patrick Brode examines the history of the law governing breaches of duty leading to liability for seduction, breach of promise of marriage and unlawful sexual conversation which early Canadian law inherited from English common law.   He argues that these laws are a testament to how early Canadians tried to control sexuality and courtship, even consensual activities among adults.  These laws arose during an era when women were regarded as mere chattels and forbidden by law to vote, own property or participate in commerce.    With the rise of the women’s suffrage movement in the 19^th century and the women’s liberation movement of the 20^th century most of these laws became regarded as Victorian and repressive.  After detailing the evolution of these laws from Roman times through the English common law to 20^th century Canadian law, Brode turns his attention to the decision of the Supreme Court of Canada in R v. Ewanchuk 1999.    ‘Courted and Abandoned’ provides the reader with a well organized, easily understood, historical perspective.   As women gained more and more autonomy in the late 19^th and 20^th centuries,  feudal remedies ceased to have importance in modern Canadian society until resurrected in R v. Ewanchuk at the dawn of the 21 century.    In its 200 pages, ‘Courted and Abandon’ poses an interesting dilemma for women’s groups by raising and leaving open to question whether the Supreme Court’s social engineering truly fits the goals that modern women actually want to achieve.