Consent given in advance

In R. v. J.A., 2010 ONCA 226, released today, the Court of Appeal holds that consent to sexual activity can be given in advance by an individual unconscious at the time of the activity. This curious case (the facts of which are of little legal interest -- they involve choking and sexual game playing) have a broader application for issues of consent.

The Court holds:

ii) Did the trial judge err in law in holding that the complainant could not consent in advance to sexual activity while unconscious?

[61] On appeal, the appellant relies on the trial judge's finding that the complainant did not suffer bodily harm as that term is defined in the Criminal Code and submits that the criminal law does not prohibit consensual sexual activity while unconscious where a person gives their consent in anticipation of becoming unconscious. According to the appellant, none of the decisions of this court that have addressed the issue of sexual activity while unconscious have involved a situation where the complainant consented in advance to sexual activity expected to occur while unconscious.

[62] Further, the appellant points out that s. 273.1(1) of the Criminal Code defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question" and argues that there is nothing novel about the suggestion that consent can be given to touching which is intended to occur while a person is unconscious.

[63] For example, a competent person can consent to surgery which is to occur while the person is unconscious even though he or she will not be conscious or be able to revoke consent once anesthetised. Similarly, no one would suggest that an intoxicated person who asks a friend to help him get home and then passes out and is carried home by the friend was assaulted or kidnapped.

[64] The appellant submits that no provision of the Criminal Code prohibits a person from providing consent in advance to touching that is anticipated to occur while the person is unconscious. Section 273.1(2) of the Criminal Code prohibits obtaining consent to sexual activity from a person who is unconscious and provides that no consent is obtained where the complainant, having expressed by words or conduct a lack of agreement to continue to engage in the activity. It does not prohibit a person from consenting in advance to sexual touching anticipated to occur while the person is unconscious.

[65] The appellant concedes that unless a person gives consent in advance to sexual contact anticipated to occur while the person is unconscious, sexual activity occurring after the person loses consciousness exhausts the prior consent because unconsciousness changes the nature of the sexual activity.

[66] However, relying on the minority decision in Ashlee as well as the language of s. 273.1, the appellant contends that permitting a person to consent to sexual activity in anticipation of unconsciousness is not prohibited by the express language of the Criminal Code. Moreover, it is entirely consistent with the important goal of the criminal law of protecting the personal integrity of individuals and providing them with control over who touches their body.

[67] The appellant also argues that prohibiting sexual touching which occurs while one's partner is unconscious would have the unwanted effect of criminalizing the behaviour of a person who touches their partner in a sexual way while their partner is sleeping. This is one of the arguments that was made in Ashlee and the dissenting judge, at p. 489, adopted the view that "an individual can, while capable of consenting, consent in advance to being sexually touched while he or she is unconscious or asleep (emphasis added)."

[68] By way of response, the Crown contends that various authorities have made it clear that consent to sexual contact is legally valid only where a person subjectively consents to the sexual activity at the time it occurs. In support of its position the Crown relies on R. v. Ewanchuk; on comments made by McLachlin J. in R. v. Esau; and on this court's decisions in R. v. Humphrey, R. v. J.R. and J.D., [2008] O.J. No. 1054, leave to appeal denied [2008] S.C.C.A No. 231, and R. v. Bell, [2007] O.J. No. 1725.

[69] I would not accept the Crown's submissions. On my review of the authorities and the relevant provisions of the Criminal Code, I see no basis for holding that, as a matter of general principle, a person cannot legally consent in advance to sexual activity expected to occur while the person is either unconscious or asleep. If anything, in my view, the relevant caselaw supports the opposite conclusion.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777