R. v. J.A. (SCC) – Criminal law – Sexual assault – Content – Erotic asphyxiation
MLB being edited
Currently being edited for N.R. – judgment temporarily in rough form.
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
Temp. Cite: [2011] N.R. TBEd. MY.022
Her Majesty The Queen (appellant) v. J.A. (respondent) and Attorney General of Canada and Women’s Legal Education and Action Fund (intervenors)
(33684; 2011 SCC 28; 2011 CSC 28)
Indexed As: R. v. J.A.
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
May 27, 2011.
Summary:
The complainant testified that she consented to her intimate partner (the accused) choking her into unconsciousness. When she regained consciousness, she was on her knees at the edge of the bed with her hands tied behind her back, and the accused was inserting a dildo into her anus. The accused removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse and the accused cut the complainant’s hands loose. Approximately two months later, she complained that she had not consented to the sexual activity (in particular the use of the dildo). Criminal charges ensued. Consent was in issue.
The Ontario Court of Justice, in a decision reported 2008 ONCJ 195, convicted the accused of sexual assault. The trial judge held that the complainant did not in fact consent to penetration with the dildo while unconscious and, in any event, could not consent in advance to sexual activity which was to take place while she was unconscious. The accused appealed.
The Ontario Court of Appeal, LaForme, J.A., dissenting, in a decision reported 260 O.A.C. 248, allowed the appeal, set aside the conviction and dismissed the charges. The majority held that the trial judge erred in finding as a fact that the complainant did not consent in advance to the sexual activity that occurred while she was unconscious. Further, the trial judge erred in reaching the broad conclusion that a person could not legally consent in advance to sexual activity expected to occur while unconscious. The Crown appealed.
The Supreme Court of Canada, Fish, J., dissenting (Binnie and LeBel, JJ., concurring), allowed the appeal and restored the accused’s sexual assault conviction. The majority held that the Criminal Code defined consent as requiring a conscious, operating mind throughout the sexual activity. The Code made it clear that an individual had to be conscious throughout the sexual activity in order to provide the requisite consent. The court rejected the suggestion that a complainant’s consent could be given in advance, and remained operative unless and until it was subsequently revoked.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Criminal Law – Topic 665
Sexual offences, public morals and disorderly conduct – Sexual offences – Rape or sexual assault – General – The Supreme Court of Canada reviewed the framework of the sexual assault legislation (Criminal Code) – See paragraphs 22 to 30.
Criminal Law – Topic 666
Sexual offences – Rape or sexual assault – Consent – The Supreme Court of Canada discussed the concept of consent under the sexual provisions of the Criminal Code and in the jurisprudence – The court concluded that the definition of consent for sexual assault required the complainant to provide actual active consent throughout every phase of the sexual activity – It was not possible for an unconscious person to satisfy that requirement, even if she expressed her consent in advance – Any sexual activity with an individual who was incapable of consciously evaluating whether she was consenting was therefore not consensual within the meaning of the Criminal Code – The court rejected the suggestion that a complainant’s consent could be given in advance, and remained operative unless and until it was subsequently revoked – See paragraphs 31 to 50.
Criminal Law – Topic 666
Sexual offences – Rape or sexual assault – Consent – At issue was whether a person could perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious (i.e., did consent for the purpose of sexual assault require the complainant to be conscious throughout the sexual activity) – The Supreme Court of Canada, per McLachlin, C.J.C., stated that “Our task on this appeal is to determine whether the Criminal Code defines consent as requiring a conscious, operating mind throughout the sexual activity. I conclude that the Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the requisite consent. Parliament 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 …” – See paragraph 3.
Criminal Law – Topic 666
Sexual offences – Rape or sexual assault – Consent – The complainant testified that she consented to her intimate partner (the accused) choking her into unconsciousness – When she regained consciousness, she was on her knees at the edge of the bed with her hands tied behind her back, and the accused was inserting a dildo into her anus – The accused removed the dildo ten seconds after she regained consciousness – The two then had vaginal intercourse and the accused cut the complainant’s hands loose – Approximately two months later, she complained that she had not consented to the sexual activity (in particular the use of the dildo) – The accused was convicted of sexual assault, but the conviction was overturned on appeal – The Crown appealed – Consent was at issue – The Supreme Court of Canada restored the sexual assault conviction – The court concluded that the definition of consent for sexual assault required the complainant to provide actual active consent throughout every phase of the sexual activity – It was not possible for an unconscious person to satisfy that requirement, even if she expressed her consent in advance.
Cases Noticed:
R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [paras. 18, 72].
Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 32].
R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241, refd to. [para. 36].
R. v. Humphrey (C.) (2001), 143 O.A.C. 151 (C.A.), refd to. [para. 36].
R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 131 N.S.R.(2d) 79; 371 A.P.R. 79, refd to. [para. 41].
R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 45].
R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 48].
R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [paras. 57, 120].
R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [paras. 57, 93].
R. v. Osvath (C.) (1996), 87 O.A.C. 274; 46 C.R.(4th) 124 (C.A.), refd to. [para. 60].
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 63].
R. v. Keegstra (J.), [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50, refd to. [para. 86].
R. v. Carson (S.) (2004), 185 O.A.C. 298; 185 C.C.C.(3d) 541 (C.A.), refd to. [para. 121].
R. v. Paice (C.D.J.), [2005] 1 S.C.R. 339; 332 N.R. 159; 262 Sask.R. 171; 347 W.A.C. 171; 2005 SCC 22, refd to. [para. 130].
R. v. Ashlee (G.A.) et al. (2006), 391 A.R. 62; 377 W.A.C. 62; 61 Alta. L.R.(4th) 226; 2006 ABCA 244, refd to. [para. 144].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1) [para. 27]; sect. 271(1) [para. 23]; sect. 273.1(1), sect. 273.1(2), sect. 273.1(3) [para. 28]; sect. 273.2 [para. 30].
Authors and Works Noticed:
Canada, Hansard, House of Commons Debates, vol. 8, 3rd Sess., 34th Parliament (April 8, 1992), p. 9507 [para. 111].
Canada, Hansard, House of Commons Debates, vol. 9, 3rd Sess., 34th Parliament (June 15, 1992), p. 12045 [para. 111].
Card, Richard, Sexual Offences: The New Law (2004), pp. 43, 44 [para. 143].
Fletcher, George P., Basic Concepts of Legal Thought (1996), p. 112 [para. 55].
Stewart, Hamish, Sexual Offences in Canadian Law (2004) (2010 Looseleaf Update, Release 7), p. 3-25 [para. 115].
Stuart, Don, Canadian Criminal Law: A Treatise (5th Ed. 2007), p. 587 [para. 93].
Tanovich, David M., Criminalizing Sex At The Margins (2010), 74 C.R.(6th) 86, p. 90 [para. 115].
United Kingdom, House of Commons, Home Affairs Committee, Fifth Report of Session 2002-03: Sexual Offences Bill, HC639 (2003), para. 31 [para. 143].
Counsel:
Christine Bartlett-Hughes, for the appellant;
Howard L. Krongold and Matthew C. Webber, for the respondent;
James C. Martin, for the intervener, the Attorney General of Canada.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellant;
Webber Schroeder Goldstein Abergel, Ottawa, Ontario, for the respondent;
Attorney General of Canada, Halifax, Nova Scotia, for the intervener, the Attorney General of Canada;
Women’s Legal Education and Action Fund, Toronto, Ontario, for the intervener, the Women’s Legal Education and Action Fund.
This appeal was heard on November 8, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein, and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages on May 27, 2011, including the following opinions:
McLachlin, C.J.C. (Deschamps, Abella, Charron, Rothstein and Cromwell, JJ., concurring) – see paragraphs 1 to 67;
Fish, J.A., dissenting (Binnie and LeBel, JJ., concurring) – see paragraphs 68 to 145.
