R v J.A.

R. v. J.A.

2011 SCC 28, [2011] 2 S.C.R. 440
Supreme Court of Canada — McLachlin C.J. (majority), Fish J. (dissenting) | May 27, 2011

Background

J.A. and his long-term partner K.D. engaged in consensual erotic asphyxiation during sexual activity. K.D. consented to being choked until unconscious, understanding she might lose consciousness. While unconscious for less than three minutes, J.A. tied her hands and inserted a dildo anally. When K.D. regained consciousness, the activity continued for ten seconds before moving to consensual vaginal intercourse. Two months later, K.D. complained to police, claiming she hadn't consented to the sexual activity while unconscious, though she later recanted, saying the complaint was motivated by J.A.'s custody threats regarding their child.

The trial judge convicted J.A. of sexual assault, finding K.D. could not legally consent to sexual activity while unconscious. The Ontario Court of Appeal overturned the conviction 2-1, with the majority ruling that advance consent to unconscious sexual activity was legally valid.

Issues

1. Whether a person can consent in advance to sexual activity that occurs while they are unconscious
2. Whether the Criminal Code requires conscious, ongoing consent throughout sexual activity

The Consent Requirement

The Supreme Court split 6-3, with Chief Justice McLachlin's majority holding that Parliament's definition of consent in section 273.1 of the Criminal Code requires conscious, ongoing agreement throughout sexual activity. The majority interpreted section 273.1(2)(b) — which states no consent is obtained where "the complainant is incapable of consenting" — as precluding advance consent to unconscious sexual contact.

The majority emphasized that section 273.1(2)(e) allows people to revoke consent at any time during sexual activity, which an unconscious person cannot do. They also pointed to section 273.2(b), which requires accused persons to take "reasonable steps" to ascertain ongoing consent — impossible with an unconscious partner.

Justice Fish's dissent argued that K.D. said "yes, not no" and that criminalizing advance consent to brief unconsciousness would absurdly make sexual assault of kissing a sleeping partner. The dissent emphasized that the consent provisions were designed to protect women's sexual autonomy, not limit their choices.

Key Takeaway

Advance consent cannot legally authorize sexual activity that occurs while a person is unconscious, regardless of how specific or enthusiastic that prior agreement was.

This decision established that consent under Canadian criminal law requires conscious, ongoing agreement that can be revoked at any moment — a standard that unconscious persons cannot meet, even with explicit prior consent to the specific activities.