No consent in unconscious sex case: Supreme Court
WARNING: Contains graphic content
Alison Crawford, CBC News
Posted: May 27, 2011 10:20 AM ET
Last Updated: May 27, 2011 7:09 PM ET
'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,' wrote Beverley McLachlin, chief justice of the Supreme Court of Canada. (Andrew Vaughan/Canadian Press)
Related
Related Links
External Links
(Note:CBC does not endorse and is not responsible for the content of external links.)
A woman cannot give advance consent to sexual activity while unconscious, the Supreme Court of Canada ruled Friday.
The decision restores the conviction of an Ottawa man who regularly practised consensual erotic asphyxiation with his longtime girlfriend.
The case goes back to a particular episode in 2007 when the woman, who cannot be named because of a publication ban, complained to police about what her partner did to her after she passed out. At trial, the man was found guilty of sexual assault but his conviction was overturned on appeal.
On Friday, in a 6-3 decision, the country's top court restored the conviction. Writing for the majority, Chief Justice Beverley McLachlin said consent ends once someone is unconscious or asleep.
"If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent," the ruling said.
The definition of consent is an ongoing state of mind where individuals can ask their partner to stop, McLachlin wrote.
"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," she wrote.
Concerned about freedom of choice
Three Supreme Court judges disagreed. In the dissenting opinion written by Justice Morris Fish, the judges said Friday's ruling would deprive women "of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others."
They also expressed concern about the criminalization of normal sexual relations between spouses.
"The approach advocated by the Chief Justice would also result in the criminalization of a broad range of conduct that Parliament cannot have intended to capture in its definition of the offense of sexual assault. Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately."
Elizabeth Sheehy, a lawyer for the Women's Legal Education and Action Fund, which intervened in this case, dismissed the dissenting opinion. She called the majority ruling a major victory for women.
"The most important message that the court is communicating is that unconscious women are not sexually available," she said.
The Ottawa man served 18 months in jail after his conviction in 2008 on the sexual assault charge.
Share Tools
Top News Headlines
- Half of First Nations children live in poverty
- Half of status First Nations children in Canada live in poverty, a troubling figure that jumps to nearly two-thirds in Saskatchewan and Manitoba, says a newly released report. more »
- World's displaced people at 18-year high of 45.2 million
- The Syrian civil war contributed to push the numbers of refugees and those displaced by conflict within their own nation to an 18-year high of 45.2 million worldwide by the end of 2012, the UN refugee agency says. more »
- Who's who in the Senate expense controversy
- Keeping track of the names popping up in the ongoing Senate expenses controversy — from the investigators to the four senators themselves — could be a difficult task for even the most seasoned political observers. more »
- Mixed reviews for Ottawa's new 'open data' website
- Treasury Board President Tony Clement is touting the federal government's revamped data portal as a "new natural resource." But that online window for previously published data arrives at the same time the government faces controversy over just how open it really is. more »
Must Watch
Latest Canada News Headlines
- 2 men jailed in Dominican wedding fight return to Canada
- Two Canadian men who were detained in the Dominican Republic for nearly three weeks after a post-wedding fight broke out at a resort have returned to Toronto, the latest step in a drama that the wife of one of the men said was "like a scene from the movies." more »
- Mixed reviews for Ottawa's new 'open data' website
- Treasury Board President Tony Clement is touting the federal government's revamped data portal as a "new natural resource." But that online window for previously published data arrives at the same time the government faces controversy over just how open it really is. more »
- Who's who in the Senate expense controversy
- Keeping track of the names popping up in the ongoing Senate expenses controversy — from the investigators to the four senators themselves — could be a difficult task for even the most seasoned political observers. more »
- MPs and senators' side income provokes ethics debate
- The debate over Justin Trudeau's speaking fees has raised questions about what MPs and senators should be allowed to earn on top of their salaries, with some political watchers urging a wider discussion about financial conduct among parliamentarians. more »
The National
The Current
- What happened to Betty Anne Gagnon? Jun. 18, 2013 3:09 PM Betty Anne Gagnon's mental disabilities didn't stop her from finding work, or finding friends. But when she needed it the most, she was unable to find help.
- 2 men jailed in Dominican wedding fight return to Canada
- Police probe death of woman, 27, in Kelowna home
- Hundreds attend 'Change Brazil' protest in Vancouver
- Are e-cigarettes safe to puff?
- MPs pass NDP motion on expenses, adjourn for summer
- Huge ancient city at Angkor Wat revealed by lasers
- Parents of son 'brutally beaten' playing hockey want charges
- Most groups don't want return of Trudeau speaking fees
- Montreal mayor resigns amid corruption charges

