An unconscious person can't consent to sex, Liberals confirm in Criminal Code cleanup

An unconscious person cannot consent to sex, the Liberal government has confirmed in new legislation that aims to update Canada's Criminal Code and weed out 'zombie laws.'

Justice Minister Jody Wilson-Raybould tables bill to remove 'zombie laws' and require charter statements

Justice Minister Jody Wilson-Raybould tabled new legislation that updates Canada's sexual assault laws and weeds out obsolete "zombie" laws still on the books. (Mike dePaul/CBC)

An unconscious person cannot consent to sexual activity, the Liberal government has confirmed in new legislation that aims to update Canada's Criminal Code.

Justice Minister Jody Wilson-Raybould tabled the multi-pronged bill today, which cleans out so-called zombie laws and expands provisions for sexual assault complainants.

It introduces a series of amendments to clarify and strengthen the sexual assault and "rape shield" laws, including some that reflect Supreme Court of Canada decisions and address "misapplications" of current law.

"Our government is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, upholds the Charter of Rights and Freedoms and shows compassion to victims," Wilson-Raybould said during a news conference on Parliament Hill. "This includes an unwavering commitment to ensuring that complainants of sexual assault matters are treated with the utmost dignity and respect."

The justice minister said the proposed reforms represent the first major changes to Canada's sexual assault laws since then justice minister Kim Campbell brought in rape shield provisions 25 years ago.

The rape shield provisions prevent a complainant accusing someone of a sexual assault from being cross-examined in court about their past sexual history. 

The provisions are being expanded to include communications the accuser has made of a sexual nature and whether records of those communications can be introduced in court. The changes would allow the complainant to retain legal representation in rape shield proceedings. 

The provision that says an unconscious person is unable to grant consent to sexual activity relates to a 2011 Supreme Court case R vs. J.A., where the couple engaged in erotic asphyxiation.

J.A. choked his longtime partner K.D., with her consent, until she was unconscious. They had sex when she regained consciousness, but two months later, she filed a complaint to police that while she had consented to the choking, she did not give consent to sexual acts performed while she was unconscious.

Her partner was convicted, even though K.D. recanted her allegation and said she had made the complaint because J.A. was seeking sole custody of their young son.

Wilson-Raybould said clarifying consent is one of many "appropriate measures" on the way to improve protections for sexual assault victims.

The proposed legislation would also require the government to table a charter statement in Parliament for every new government bill introduced, defending how a given bill complies with the Charter of Rights and Freedoms.

Zombie law cleanup

As well, Bill C-51 weeds out old laws that have been struck down by the courts as unconstitutional or are now obsolete. It's the second phase of the Criminal Code cleanup.

Some of the offences to be removed include:

  • Challenging someone to a duel.
  • Advertising a reward for the return of stolen property "no questions asked."
  • Possessing, printing, distributing or publishing crime comics.
  • Publishing blasphemous libel.
  • Fraudulently pretending to practise witchcraft.
  • Issuing trading stamps.

Wilson-Raybould said removing the zombie laws is part of an overall reform of the criminal justice system, which will also include a review of mandatory minimum sentences, bail reforms and a preliminary inquiry review.

Conservative justice critic Rob Nicholson said he hopes this bill won't distract from a major problem plaguing Canada's justice system: the slow pace of filling judicial appointments that is causing backlogs and cases to be thrown out of court.