R. v. J.A.: An Uncomfortable Truth
Few issues have the power to invoke a more potent and severely personal response than that of sexual assault. It is, at its core, an indefensible act. It should follow, one would like to believe, that the Canadian justice system – whether it be Parliament or the Judiciary – would have the law surrounding sexual assault figured out by now. Every once in a while, a case will expose the uncomfortable fact that it hasn’t. This is one of those cases.
The complainant (K.D.) and the accused (J.A.) were long-time sexual partners. Over the course of their relationship, the couple had experimented with erotic asphyxiation. K.D. testified that she understood that this type of activity might result in a loss of consciousness – in fact, it had done so in the past. On the night of May 22, 2007, as a result of this practice, K.D. became unconscious for what she described as “less than three minutes.” While K.D. was unconscious, J.A. inserted a dildo into her rectum and bound her wrists. After she awoke, the couple proceeded to have sexual intercourse. Her wrists were then unbound. A month and a half later, on July 11, K.D. reported to the police that she had not consented to the sexual activity that had occurred while she was unconscious.
K.D. later recanted her testimony, saying that she had only made the accusations because K.D. had threatened to fight for custody of their 2-year-old son. However, her conflicting testimony was dismissed by the trial judge as “typical…of a recanting complainant in a domestic matter,” and the case went forward.
The case was first heard in 2008 by the Ontario Court of Justice (2008 ONCJ 195). Though J.A. was found not guilty on charges of aggravated assault and assault causing bodily harm, the trial judge held that K.D. could not have consented to the insertion of the dildo due to the determinative fact that she was unconscious at the time. J.A successfully appealed his sexual assault conviction in front of the Ontario Court of Appeal (2010 ONCA 226), where a unanimous court ruled that there was insufficient evidence at trial to determine whether consent had been granted. While the court was in agreement with respect to the final decision, it was divided on the issue of whether someone could consent in advance to unconscious sexual activity.
Justice Simmons, for the majority, wrote that an individual could preemptively consent – assuming they actually consented and at no point changed their mind – to sexual activity that would occur while they were unconscious. In dissent, however, Justice LaForme argued that consent requires, without exception, an active mind. The Supreme Court’s decision in R. v. Ewanchuk,  1 S.C.R. 330, made it clear, LaForme argues, that prior consent is insufficient because it eliminates the individual’s ability to give consent – or withdraw it – at any given moment. He goes on to write that the Criminal Code’s definition of consent implies that consent is no longer valid “as soon as the complainant falls unconscious and is incapable of consenting.”
Due to the nature of the appeal (see section 692(1)(a) of the Code), the Supreme Court is required to answer a single, all-or-nothing question: does consent, for the purposes of a sexual assault conviction, require the complainant to be conscious throughout the sexual activity? Chief Justice McLachlin makes it very clear that the Court will not address any related issues, such as whether the complainant in fact consented, whether the complainant in fact suffered bodily harm or, much more broadly, whether an individual may, by law, consent to bodily harm during sexual activity.
The Basic Framework
Sexual assault is a criminal offence under section 271(1) of the Criminal Code. There are two fundamental components of a criminal conviction, both of which must be proven beyond a reasonable doubt: the actus reus (wrongful act) and the mens rea (mental state). For a section 271(1) conviction, the actus reus is said to have been committed when there is actual sexual touching in the absence of consent. The mens rea requirement, on the other hand, will be satisfied if it shown that the accused proceeded with the touching despite being aware (or reckless or willfully blind) that the complainant had not consented. This is the point where an accused may raise the “honest mistake” defence if he or she was under the honest, yet mistaken impression that consent had been granted.
Having said that, mens rea is not at issue here. For the reasons provided above, this decision is focused exclusively on consent for the purpose of establishing the actus reus. Unlike so many other aspects of the law, consent for the purpose of establishing the actus reus of sexual assault is one hundred percent subjective. The only thing that matters is whether K.D., in her own mind, regardless of whether it was expressed or communicated in any way, consented. Given the facts, therefore, was consent for the purpose of establishing the actus reus even possible? McLachlin (6) says no; Fish (3) says yes.
NO: McLachlin (Deschamps, Abella, Charron, Rothstein and Cromwell)
McLachlin’s analysis proceeds, roughly speaking, in two parts. First, she examines the concept of consent as defined by the Criminal Code. Second, she examines the concept of consent as applied in recent case law.
(1) The Criminal Code defines sexual assault, albeit somewhat indirectly, as an assault (section 265) – which requires, by definition, an absence of consent – that is sexual in nature. McLachlin underlines a number of key Code provisions. For instance, section 273.1(2)(b) reads: “No consent is obtained, for the purposes of [sexual assault], where (b) the complainant is incapable of consenting to the activity…” Evidently, this provision reflects Parliament’s concern for the sexual integrity of individuals who may lack the mental capacity to give meaningful consent. According to McLachlin, the requisite level of incapability may come as the result of mental impairment or, more importantly, unconsciousness (see R v. Esau,  2 S.C.R. 777). “It follows,” she writes “that Parliament intended consent to mean the conscious consent of an operating mind.”
McLachlin also chooses to highlight certain provisions that relate strictly to mens rea. One example is section 273.1(2)(e), which states that consent will be recanted if “the complainant, having consented to engage in sexual activity, expresses by word or conduct, a lack of agreement to continue to engage in the activity.” Although this provision is not directly related to the issue at hand (actus reas), she believes that it is still, to a certain extent, demonstrates that Parliament intended to provide people with the power to withdraw consent at any point during sexual activity. To withhold this power from K.D. simply because she was unconscious would run in direct conflict with Parliament’s intent.
(2) Although this specific issue has not yet come before the Supreme Court, McLachlin makes it very clear that “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.” Of particular importance is the case of R v. Ewanchuk,  1 S.C.R. 330, where it was held that the only relevant time for consent is while the actual sexual touching is taking place. It is up the trier of fact (in this case, the trial judge) to determine whether K.D. was, in that exact moment, experiencing the “state of mind of consent.” As such, the so-called “advance consent” would be impossible, especially for someone who subsequently falls unconscious and loses the ability to revoke.
As usual, McLachlin’s logic is both sound and convincing. In fact, considering the complexity of the issue, her logic is surprisingly simple: sexual assault is sexual touching without consent, and consent may only be provided by an “ongoing, conscious and present” mind. She believes that this conception of consent has produced, for the most part, just results. While she admits that there may be certain instances where this consciousness requirement might seem “unrealistic,” it is up to Parliament to change it – not the courts. This is a classic institutional competence argument. Rather than offer her judicial opinion as to what she believes is “just,” she defers to the supremacy of an elected Parliament, the more “appropriate institution…to settle the law on consent.” In the meantime, the appeal must be allowed, and the conviction restored.
YES: Fish (Binnie and LeBel)
Having only read McLachlin’s reasons, one might jump to the conclusion that this issue had been settled in an authoritative and rational manner. While the authority of McLachlin’s majority is beyond debate, the same cannot be said for her rationale.
Justice Fish thinks McLachlin has got the issue all wrong. It is not whether an unconscious person can consent to sexual activity; it is whether a fully conscious person can agree in advance to engage in sexual activity while unconscious. Justice Fish begins his emotional and surprisingly confrontational dissent by reminding readers that “no means ‘no’ and only yes means ‘yes.’” As Fish sees it, a fully conscious K.D. actually said yes. Thus, to convict J.A. of sexual assault would be to find that “yes” actually means “no” under law. In his view, the relevant provisions of the Code are designed to “protect women against abuse by others,” not themselves. In other words, the law aims “to safeguard and enhance the sexual autonomy of women, and not to make choices for them.”
The individual autonomy of women, it appears, is at the crux of Justice Fish’s argument. What happened on the night of May 22, 2007, was nothing more than a woman choosing to engage in consensual “sexual adventures that involve no proven harm to them or to others.” The lack of harm seems to be a key factor in his opinion. In addition to undermining individual autonomy, Fish believes that McLachlin’s ruling will have the terribly unintended effect of rendering even the slightest kiss or caress of a sleeping spouse (or cohabiting partner) sexual assault.
As far as section 273.1(2)(b) is concerned, Fish agrees that unconsciousness meets the requisite incapacity threshold. It is of no application to this case, however, as “it simply confirms that consent cannot be obtained from a person who is at the time incapable of consenting.” Basically, Fish is saying that K.D.’s consent was valid because she gave it at a time when her mind was fully awake and aware, and in no way incapable.
At its absolute core, the disagreement seems to revolve around the question of whether losing one’s ability to revoke consent (i.e. falling unconscious or asleep) should immediately vitiate it. The irony, of course, is that both Justices are interpreting the same provisions of the Code and the same case law, and both are looking to protect the best interests of J.A. specifically, and complainants generally. The difference, therefore, is in the precise interests they are trying to protect. On the one hand, McLachlin seeks to protect an individual’s right to revoke consent at any time throughout sexual activity. Consent requires an active mind, so when the mind is no longer active, the consent is no longer valid. On the other hand, Fish seeks to protect an individual’s ability to make a free and autonomous decision regarding sexual activity. Assuming the sexual conduct does not exceeded the scope of the initial consent, there is little reason to invalidate the consent of an entirely conscious adult.
This issue can be considered settled insofar as McLachlin’s analysis has won the support of a Supreme Court majority. The vigour with which Fish makes his dissent, however, demonstrates all too clearly that the broader discussion is far from over (see recent articles by Rosie DiManno and Kazi Stastna). In fact, considering that this is the first time the Supreme Court has expressly considered the issue, one might argue that the public debate has only just begun.