Supreme Court decision on sexual consent

Friday's Supreme Court decision striking down the notion that a person can give advance consent to sexual activity that takes place while that person is unconscious might not radically alter existing laws on sexual assault but is an important reaffirmation and clarification of those laws, say some legal experts.

What the ruling means for sexual assault law in Canada

Friday's Supreme Court of Canada decision, which strikes down the notion that a person can give advance consent to sexual activity that takes place while that person is unconscious, does not radically alter the existing laws on sexual assault.

Still, legal experts say it is an important reaffirmation and clarification of those laws.

"It clears up any misapprehension that there is such a thing as implied consent, advance consent or continuous consent, particularly in the context of spousal or other intimate relationships," says Melanie Randall, who teaches law at the University of Western Ontario in London. "The Supreme Court is really unambiguous that there is no special exemptions or exceptions in these contexts."

Such exceptions did exist not that long ago, adds Randall. Up until 1983, when the Criminal Code was revised, a women's consent to sex was not required but assumed in marriage, for example.

"It's taken a long time for people to realize that even in intimate relationships, women have a right to say no to sex, that men must ensure that there is consent to sexual contact, that consent does not exist in advance of or prior to sexual contact," Randall said.

The May 27 ruling was a split 6-3 decision by the nine judges of the Supreme Court, who are: front row, left to right, Marie Deschamps, William Binnie, Chief Justice Beverley McLachlin, Louis LeBel and Morris Fish; back row, left to right. Marshall Rothstien, Rosalie Silberman Abella, Louise Charron and Thomas Cromwell. Binnie, LeBel and Fish were the dissenting judges. ((Adrian Wyld/Canadian Press))

Randall worked on drafting legal arguments for one of the interveners in this case, the Women's Legal Education and Action Fund (LEAF), which argued that a person who is unconscious is not capable of consenting to sexual activity and that consent must be active, voluntary, ongoing, contemporaneous with the activity in question and revocable at any time.

"[The decision] has confirmed what is already clear in the Criminal Code and what, in our view, also should be common sense, which is that when a woman is unconscious, she's not sexually available," said LEAF's legal director, Joanna L. Birenbaum.

Randall sees the decision as important for clarifying what Canadian law on sexual assault requires when it comes to arguing that a complainant consented to a sexual act.

"It's a strong and clear judgment that consent requires a conscious operating mind and that you can't either actively consent or revoke your consent in the absence of that. So, it's impossible to consent in advance to sexual contact when you're unconscious," she said.

Prior consent no longer valid defence

The Criminal Code does not directly address the notion of advance consent or the question of whether a person is conscious or unconscious, the two key factors in the case that went before the Supreme Court. The Code does define sexual assault in terms of the absence of "voluntary agreement" to engage in sexual activity and refers to instances when a person is "incapable" of giving such agreement.

Existing Criminal Code provisions already made it clear that if a person is unconscious, they are incapable of giving voluntary agreement. But prior to Friday's decision, the Code was not explicit about the idea of giving consent in advance, said Martha Shaffer, a law professor at the University of Toronto

"Now, the law is clear: The notion that you give prior consent is not recognized in Canadian law," Shaffer said.

The case is the first to go before the Supreme Court involving advance consent to unconscious sex, Shaffer said, but is consistent with both Criminal Code provisions and past court decisions on sexual assault. Rather than looking in detail at the facts of the case, as had been done in the two earlier stages — in provincial court and the Ontario Court of Appeal — the Supreme Court judges focused on the points of law involved.

"I don't think the facts were really driving this decision," Shaffer said. "What was driving this decision was concern about recognition of the idea that you can give consent in advance to the activity that occurred and what that would mean for women who are intoxicated — either voluntarily or involuntarily."

'This case was argued purely as a question of law: is it legal to give this kind of advance consent?'— Martha Shaffer, University of Toronto Faculty of Law

From that perspective, questions around whether the female complainant in the original case gave her consent to the sexual activity that her common-law partner performed on her while she was unconscious or why she recanted her original accusation of sexual assault were irrelevant at the Supreme Court stage.

"This case was argued purely as a question of law: Is it legal to give this kind of advance consent — can you do it?" said Shaffer. "And the court said, 'No, you can't.' So, even if she thought she could, what the court has said is, 'Too bad, you can't do it; it is not valid consent as a matter of Canadian law.'"

Constitutional challenge possible

Also not considered at this stage were the dozens of past criminal convictions the defendant had, which included domestic violence against the complainant as well as against a former girlfriend, or the original trial judge's finding that the woman's conflicting testimony was "typical... of a recanting complainant in a domestic matter."

But for LEAF, the context of the particular case as well as the broader issues of violence perpetuated against women who are incapacitated, whether because of drugs, alcohol or physical disability, which, Birenbaum says, is a risk that is real and pervasive, are as valid as the points of law.

'I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized.'— Melanie Randall, University of Western Ontario Faculty of Law

"Part of what LEAF's role is is to situate the legal issues that come before the court within the factual context of the reality of women's lives," said Birenbaum.

Concerns that the decision will curtail people's freedom to engage in risky, unconventional forms of sex are unwarranted, says Randall.

"I see all of these arguments as kind of red herrings – same as the concern that spouses who kiss their sleeping partners are suddenly going to be criminalized," she said. "We don't really have massive social problems around these issues, but we do have a massive social problem around sexual assault and getting a good criminal justice response to sex assault."

She says that although the Supreme Court decision could be appealed by way of a constitutional challenge, she hopes that won't happen.

"I hope that no one wastes their effort on that, because it doesn't seem to be an important social issue right now," she said.