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SEXUAL ASSAULT - CONSENT MUST BE REVOCABLE


R. v. J.A., 2011 SCC 28 Lexum

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One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long-term partner K.D. and choked her until she was unconscious.  At trial, K.D. estimated that she was unconscious for “less than three minutes”.  She testified that she consented to J.A. choking her, and understood that she might lose consciousness.  She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before.  When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting a dildo into her anus.  K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo in her anus.  J.A. removed the dildo ten seconds after she regained consciousness.  The two then had vaginal intercourse.  When they finished, J.A. cut K.D.’s hands loose.


                   K.D. made a complaint to the police two months later and stated that while she consented to the choking, she had not consented to the sexual activity that had occurred.  She later recanted her allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their young son.  The trial judge convicted J.A. of sexual assault.  A majority of the Court of Appeal allowed the appeal, set aside the conviction and dismissed the charges against J.A.


                   Held (Binnie, LeBel and Fish JJ. dissenting):  The appeal should be allowed and the respondent’s conviction for sexual assault restored.


                   Per McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell J.J.:  The issue to resolve in this appeal is whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious.  Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question.  Parliament’s definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious.  The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.


                   This definition of consent is in harmony with the provisions of the Criminal Code and their underlying policies and is also consistent with the tenor of the jurisprudence of this Court.  The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.  The jurisprudence also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred.  It is not sufficient for the accused to have believed the complainant was consenting:  he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question.  This is impossible if the complainant is unconscious.


                   The argument that advance consent equals actual consent because the complainant cannot change her mind after being rendered unconscious runs contrary to this Court’s conclusion in R. v. Ewanchuk that the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring.  When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs.  Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.


                   In some situations, the concept of consent Parliament has adopted may seem unrealistic.  However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine Parliament’s choice.  This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed.  In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.


                   Per Binnie, LeBel and Fish J.J. (dissenting):  It is a fundamental principle of the law governing sexual assault in Canada that no means “no” and only yes means “yes”.  In this case, K.D. said yes, not no.  She engaged with J.A. in sexual activity to which she had freely consented in advance, while conscious.  To convict J.A. of sexual assault in these circumstances is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy.  And it is wrong on the facts of this case.


                   The provisions of the Criminal Code regarding consent to sexual contact and the case law were intended to protect women against abuse by others.  They aim to safeguard and enhance the sexual autonomy of women, and not to make choices for them.


                   It is a well-established principle that the complainant’s genuine consent precludes a finding of sexual assault.  There is nothing in the Criminal Code that indicates that Parliament has considered or adopted a statutory exception to this principle which would vitiate consent to unconscious sexual activity.  Indeed, the wording of s. 273.1(2)(e) of the Criminal Code suggests that the complainant’s consent can be given in advance, as it was in this case, and remains operative unless and until it is subsequently revoked.  Upon regaining consciousness, K.D. did not revoke her prior consent to the sexual conduct in issue — which was then still ongoing.  And it has not been suggested that she had earlier revoked her consent by words or conduct, or even in her own mind.


A person cannot, while unconscious, consent or revoke consent.  However, it hardly follows, that consenting adults cannot, as a matter of law, willingly and consciously agree to engage in a sexual practice involving transitory unconsciousness — on the ground that, during the brief period of that consensually induced mental state, they will be unable to consent to doing what they have already consented to do.  There is no factual or legal basis for holding that the complainant’s prior consent, otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her voluntary unconsciousness.  It was not suspended by the fact that she had rendered herself incapable of revoking the consent she had chosen, freely and consciously, not to revoke either immediately before or immediately after the brief interval of her unconsciousness.  The complainant’s prior consent to the activity in question constituted a valid consent only to the contemplated activity.  In the absence of any evidence that J.A.’s conduct exceeded the scope of the complainant’s consent, or caused her bodily harm that would vitiate her consent at common law, there is no basis in the provisions of the Criminal Code for concluding that the complainant’s consent in fact was not a valid consent in law.

Jim O'Neil, LL.B.

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