Crimes of (Unconscious) Passion

Today’s release from the Supreme Court of Canada, R. v. J.A., 2011 SCC 28 is a real head-scratcher. The facts are both titillating and fascinating.

J.A. and his long time partner, K.D. were a sexually explorative adult couple. On several prior occasions they had experimented with the delicate art of erotic asphyxiation — in which one partner chokes the breath out of the other to heighten the sexual pleasure associated with a lack of oxygen to the brain. Now, during my recent trip to Ecuador’s Cotopaxi Glacier 5000 metres above sea level I don’t recall any sexual stirrings as my oxygen-starved brain struggled to direct one plodding foot in front of the other through the waist deep snow but hey, to each his own. The point is, there was no dispute that K.D. consented to the choking as part of the couple’s sexual play and both acknowledged in advance that unconsciousness was a possible (if not likely) outcome of their conduct. Sure enough, K.D. passed out. She awoke three minutes later with her hands tied behind her back and a dildo in her anus. K.D. gave conflicting evidence about whether this was the first time J.A. had taken such back-door liberties but she did agree that within ten seconds of regaining consciousness, he removed the dildo and the two proceeded to have consensual vaginal intercourse while she remained bound.

This little sexual experiment remained a private moment between the couple until two months later when K.D. decided to report the incident to police. She conceded that she consented to the choking but drew the line at waking up with a sex toy lodged in her anus. J.A. was charged with sexual assault but at the trial, K.D. recanted her allegation explaining that she made up the criminal complaint because J.A. had threatened to seek sole custody of their young son. Despite this, the trial judge convicted J.A. only to have the conviction set aside later by the Ontario Court of Appeal.

Enter the Supreme Court of Canada tasked with the intriguing question of whether a person can provide ‘advance consent’ to sexual acts that may occur once the person is unconscious. In a display of Parliamentary deference I can only describe as bizarre, a 6-3 majority of the SCC ruled that although “the concept of consent Parliament has adopted may seem unrealistic”, the court was bound to strictly apply the statutory definition of sexual assault which requires that an individual be capable of revoking consent at any time during the course of the sexual activity. Since, by definition, once a person is rendered unconscious (albeit by a consensual act in anticipation of further consensual acts) that person is no longer physically capable of changing their minds and revoking the consent, legally the ‘advance consent’ evaporates making all subsequent physical actions on the unconscious person assaults (or sexual assaults as the case may be). Rather than the old rallying cry, “no means no”, our Supreme Court has now imposed a “yes means no” in cases where consenting adults have pre-scripted sexual fantasies that include unconsciousness. Presumably, this same logic could criminalize consensual bondage activity where one party is gagged and rendered unable to actively voice a change in consent.

While a full commentary on the majority’s reasoning is beyond the scope of this post, it is not creative hyperbole to say, as the three dissenting Justices did, that the Supreme Court has now criminalized “a broad range of conduct that Parliament cannot have intended to capture in its definition of the offence of sexual assault.” Did you wake your wife up this morning with a loving peck on the lips? Congratulations! You’re now a sexual predator. Did you stop by your child’s bed last night to kiss that cherubic little face? Welcome to the national child abuse registry!

Lest you think I’m engaging in a little reductio ad absurdem, the crown actually argued before the Court that actions like a “mild sexual touching that occurs while a person is unconscious” would be immunized from prosecution by the de minimis doctrine, only to be scolded by the Chief Justice who said “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.”

All this legal jargon has given me a headache. I’m going to lie down and take a nap. But just to be clear, don’t try anything on me while I’m asleep.


  1. I hear the question “We know ‘no’ means ‘no’ – isn’t the question in this appeal whether ‘yes’ means ‘yes’?” froze the Appellant’s counsel in their tracks

  2. David Cheifetz


    I am waiting for the announcement by a local crown that an arrest warrant has been issued for one “Charming, P” aka “Prince Charming” aka … who is charged with sexual assault on one B. (S). Apparently, the police have obtained an order allowing the accused to be named, as it is believed he is out of the jurisdiction. Appropriate steps to obtain extradition will be taken once Charming is located.

    Consider this.

    In Canada, it’s ok to beat your kids (but not too much) whether they’re awake or asleep.

    But it’s not ok to buss your partner, even if it is just a little, while he/she (but not it) is asleep.

    I am told, by those who read and write the more heated forms of “bodice ripper” that the young heroines are often “overcome in the heat of passion”, so to speak. I suppose Customs Canada will now have to include much of Harlequin’s “hotter” lines on the banned in Canada list. Could be a problem for Torstar.

    It’s too bad Frank isn’t still in existence. They’d have a field day with this one. So will I, I think. I’m just going to have to be more careful than usual.

    You have to love Fish J’s description of the divide.

    [81] In this case, J.A. engaged with K.D. in sexual activity to which K.D. freely consented while conscious. The Chief Justice would nonetheless convict J.A. of sexual assault, a serious crime. I oppose this result. In my respectful view, it 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.

    [82] That is what divides us. The rest is commentary.

    Yeah, right. Other than that, there was nothing wrong with the majority decision.

    The CJ, for the majority, blamed Parliament.

    [3] 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. …

    [65] In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. 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.

    [66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

    Nobody amongst the current majority can call her an “activist” now.

    I’m sure this is just what Emperor Steve and Happy Jack were hoping to get together on, so to speak.

    You criminal defence types will have to the Quinn v. Leathem mantra, for the first time you’re asked to defend a “midnight busser”. that’s the one in which the Earl of Halsbury wrote: ““[A] case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.)

    Nice of the majority to prove that point, no?


  3. David Cheifetz

    Add to the mix that one of three who dissented just retired and the other two are both over 70.

  4. So, this means that anyone who, while their partner is asleep, embraces them intimately – for example to fall asleep with them in a ‘spooning’ position – could be subsequently accused of sexual assault in a divorce trial.

    Nice work supreme court, really, great.

  5. One suspects that the Crown bothered appealing, and the majority of the SCC went along, with different facts in mind. I don’t practise criminal law, but even I have seen a lot of reports of cases where someone defended against a charge of sexual assault with ‘she was consenting when she passed out, so I just carried on…’. To avoid cases where a man plies his date with booze to overcome resistance, and interprets consent to kissing or stroking to include – once the booze (or other substance) has knocked her out – much more advanced sexual activities, the courts have understandably wanted to be strict.

    However, strictness has in my view got them into trouble here. In some cases one has to examine the reality of the consent in the specific case, not just draw a line in the abstract. That’s what the courts are for, ‘activist’ or not: decide how to apply what Parliament said to specific cases. In this case there was no risk to anyone outside the specific relationship before the court. The admission of prior consent and the post-unconsciousness activity (consensual intercourse) make it very clear what was going on. That combination of facts would not be available to the routine defendant of the ‘have some Madeira, my dear’ type.

  6. It’s ironic that LEAF had argued that an adult women should have no right to “choose” what she does with her body.
    More importantly, what happened at the trial, that the judge in deciding on conflicting testimony, chose the evidence that was recanted and that was most harmful to the accused.
    Isn’t that an error in law, and a Charter breech?
    How was the accused given the presumption of innocence when the recanted testimony was accepted?