On Friday, May 27, the Supreme Court of Canada ruled in the case of R v JA, on the question of advance consent to sex, that the appeal should be allowed and the respondent’s conviction for sexual assault be restored.
The case was first brought before Ontario Justice Dianne Nicholas in 2007. It involved a woman who lost consciousness in an act of erotic asphyxiation by her partner, JA. While the complainant was unconsciousness, her partner anally penetrated her with a dildo.
The trial judge convicted the woman’s partner of sexual assault. The case was then taken to the Court of Appeal, which allowed the appeal, set aside the conviction and dismissed the charges against JA.
The court today upheld the trial judge’s verdict, with justices Binnie, LeBel and Fish dissenting.
Justices McLachlin, Deschamps, Abella, Charron, Rothstein and Cromwell argued that “Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question… 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.”
Justices Binnie, LeBel and Fish argued in their dissent that the woman had consented to the sexual activity when she was conscious. The justices maintained that upon regaining consciousness, the woman “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.”
Background to the case:
At a hearing of the Supreme Court of Canada in November 2010, the judges were warned not to introduce the concept of “advanced consent” to sex into Canadian law.
The defence argued that the state should not criminalize private sexual relations, so long as the participants agree to it.
In the initial case, Justice Nicholas ruled that prior consent to the sexual act was impossible. She took, as the matter of law, that consent to a sexual activity could not be granted if a person was unconscious.
The Ontario Court of Appeals dismissed the charges. The majority ruled that people can legally consent in advance to sex that is expected to occur while someone is asleep or unconscious.
At the November hearing the Crown, represented by Christine Bartlett Hughes, argued that valid consent cannot be given in advance of sexual activity. She argued that consent to sexual activity is an ongoing state of mind that ends when the consenting adult, in this case the complainant, is unconscious.
Howard Krongold, representing the defence, argued for the courts to introduce the concept of advanced consent.
Consensual sexual touching that occurs while a person is asleep or unconscious – a definition that could include cuddling and fondling – is not a sexual assault and should not be criminalized, he said.
There is a wide spectrum of sexual activities that occur in society and most people get it right – sex is consensual – but for those who get it wrong the courts have the right to treat them harshly, Krongold told the court. But sex that may be risky should not be criminal, so long as both parties agree to it.
The Supreme Court of Canada has had a spotty record when it comes to BDSM sexuality. The longstanding Butler decision, for instance, holds that BDSM sex is inherently “harmful” and that “degrading” pornography is obscene.