SUPREME
COURT OF CANADA
Citation: R. v. J.A., 2011 SCC 28, [2011] 2
S.C.R. 440
|
Date: 20110527
Docket: 33684
|
Between:
Her
Majesty The Queen
Appellant
and
J.A.
Respondent
-
and -
Attorney General
of Canada and Women’s Legal
Education and
Action Fund
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 67)
Dissenting
Reasons:
(paras. 68 to 145)
|
McLachlin C.J. (Deschamps, Abella,
Charron, Rothstein and Cromwell JJ. concurring)
Fish J. (Binnie and LeBel JJ. concurring)
|
R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440
Her Majesty The Queen Appellant
v.
J.A. Respondent
and
Attorney General of Canada and Women’s Legal
Education and Action Fund Interveners
Indexed as: R. v. J.A.
2011 SCC 28
File No.: 33684.
2010: November 8;
2011: May 27.
Present:
McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron,
Rothstein and Cromwell JJ.
on
appeal from the court of appeal for ontario
Criminal law — Sexual assault —
Consent — Accused and complainant consensually engaging in erotic asphyxiation
— Accused anally penetrating complainant during period of unconsciousness —
Whether Criminal Code defines consent as requiring conscious, operating mind
throughout sexual activity — Whether consent to sexual activity may be given
prior to period of unconsciousness — Criminal Code, R.S.C. 1985, c. C-46,
ss. 265 , 273.1 , 273.2 .
One evening, in the course of
sexual relations, J.A. placed his hands around the throat of his long-term
partner K.D. and choked her until she was unconscious. At trial, K.D.
estimated that she was unconscious for “less than three minutes”. She
testified that she consented to J.A. choking her, and understood that she might
lose consciousness. She stated that she and J.A. had experimented with erotic
asphyxiation, and that she had lost consciousness before. When K.D. regained
consciousness, her hands were tied behind her back, and J.A. was inserting a
dildo into her anus. K.D. gave conflicting testimony about whether this was
the first time J.A. had inserted a dildo into her anus. J.A. removed the dildo
ten seconds after she regained consciousness. The two then had vaginal
intercourse. When they finished, J.A. cut K.D.’s hands loose.
K.D. made a complaint to the
police two months later and stated that while she consented to the choking, she
had not consented to the sexual activity that had occurred. She later recanted
her allegation, claiming that she made the complaint because J.A. threatened to
seek sole custody of their young son. The trial judge convicted J.A. of sexual
assault. A majority of the Court of Appeal allowed the appeal, set aside the
conviction and dismissed the charges against J.A.
Held (Binnie,
LeBel and Fish JJ. dissenting): The appeal should be allowed and the
respondent’s conviction for sexual assault restored.
Per McLachlin C.J. and
Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The issue to
resolve in this appeal is whether a person can perform sexual acts on an
unconscious person if the person consented to those acts in advance of being
rendered unconscious. Parliament has defined consent in a way that requires
the complainant to be conscious throughout the sexual activity in question.
Parliament’s definition of consent does not extend to advance consent to sexual
acts committed while the complainant is unconscious. The legislation 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.
This definition of consent is in harmony
with the provisions of the Criminal Code and their underlying policies
and is also consistent with the tenor of the jurisprudence of this Court. The
jurisprudence has consistently interpreted consent as requiring a conscious,
operating mind, capable of granting, revoking or withholding consent to each
and every sexual act. The jurisprudence also establishes that there is no
substitute for the complainant’s actual consent to the sexual activity at the
time it occurred. It is not sufficient for the accused to have believed the
complainant was consenting: he must also take reasonable steps to ascertain
consent, and must believe that the complainant communicated her consent to
engage in the sexual activity in question. This is impossible if the complainant
is unconscious.
The argument that advance consent
equals actual consent because the complainant cannot change her mind after
being rendered unconscious runs contrary to this Court’s conclusion in R. v.
Ewanchuk, [1999] 1 S.C.R. 330, that the only relevant period for
ascertaining whether the complainant consented under the Criminal Code
is while the touching is occurring. When the complainant loses consciousness,
she loses the ability to either oppose or consent to the sexual activity that
occurs. Finding that such a person is consenting would effectively negate the
right of the complainant to change her mind at any point in the sexual
encounter.
In some situations, the concept of
consent Parliament has adopted may seem unrealistic. However, it would be
inappropriate for this Court to carve out exceptions to the concept of consent
when doing so would undermine Parliament’s choice. This concept of consent
produces just results in the vast majority of cases and has proved to be of
great value in combating stereotypes that have historically existed. 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.
Per Binnie, LeBel and Fish JJ.
(dissenting): It is a fundamental principle of the law governing sexual
assault in Canada that no means “no” and only yes means “yes”. In this case,
K.D. said yes, not no. She engaged with J.A. in sexual activity to which she
had freely consented in advance, while conscious. To convict J.A. of sexual
assault in these circumstances 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.
The provisions of the Criminal
Code regarding consent to sexual contact and the case law were intended to
protect women against abuse by others. They aim to safeguard and enhance the
sexual autonomy of women, and not to make choices for them.
It is a well‑established principle
that the complainant’s genuine consent precludes a finding of sexual assault.
There is nothing in the Criminal Code that indicates that Parliament has
considered or adopted a statutory exception to this principle which would
vitiate consent to unconscious sexual activity. Indeed, the wording of
s. 273.1(2) (e) of the Criminal Code suggests that the
complainant’s consent can be given in advance, as it was in this case, and
remains operative unless and until it is subsequently revoked. Upon regaining
consciousness, K.D. did not revoke her prior consent to the sexual conduct in
issue — which was then still ongoing. And it has not been suggested that she
had earlier revoked her consent by words or conduct, or even in her own mind.
A person cannot, while
unconscious, consent or revoke consent. However, it hardly follows that
consenting adults cannot, as a matter of law, willingly and consciously agree
to engage in a sexual practice involving transitory unconsciousness — on the
ground that, during the brief period of that consensually induced mental state,
they will be unable to consent to doing what they have already consented to
do. There is no factual or legal basis for holding that the complainant’s
prior consent, otherwise operative throughout, was temporarily rendered
inoperative during the few minutes of her voluntary unconsciousness. It was
not suspended by the fact that she had rendered herself incapable of revoking
the consent she had chosen, freely and consciously, not to revoke either immediately
before or immediately after the brief interval of her unconsciousness. The
complainant’s prior consent to the activity in question constituted a valid
consent only to the contemplated activity. In the absence of any evidence that
J.A.’s conduct exceeded the scope of the complainant’s consent, or caused her
bodily harm that would vitiate her consent at common law, there is no basis in
the provisions of the Criminal Code for concluding that the
complainant’s consent in fact was not a valid consent in law.
Cases Cited
By McLachlin C.J.
Applied: R. v. Ewanchuk,
[1999] 1 S.C.R. 330; referred to: Canada Trustco
Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; R. v. Esau,
[1997] 2 S.C.R. 777; R. v. Humphrey (2001), 143 O.A.C. 151; R. v. M. (M.L.), [1994] 2 S.C.R. 3; R. v.
Park, [1995] 2 S.C.R. 836; Pappajohn v. The Queen, [1980] 2 S.C.R.
120; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Jobidon, [1991] 2
S.C.R. 714; R. v. Osvath (1996), 46 C.R. (4th) 124; Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76.
By Fish J. (dissenting)
R. v. Ewanchuk, [1999] 1
S.C.R. 330; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Jobidon,
[1991] 2 S.C.R. 714; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v.
Carson (2004), 185 C.C.C. (3d) 541; R. v. Paice, 2005 SCC 22, [2005]
1 S.C.R. 339; R. v. Ashlee, 2006 ABCA 244, 61 Alta. L.R. (4th) 226.
Statutes and Regulations
Cited
An
Act to amend the Criminal Code (sexual assault), Bill C-49, 3rd Sess., 34th
Parl., 1991 (assented to June 23, 1992), S.C. 1992, c. 38.
Criminal Code, R.S.C. 1985, c. C-46, ss. 45 , 265 , 271(1) , 273.1 , 273.2 , 693(1) (a).
Sexual Offences Act 2003 (U.K.), 2003, c. 42, s. 75.
Authors Cited
Canada.
House of Commons. House of Commons Debates, vol. VIII, 3rd Sess.,
34th Parl., April 8, 1992, p. 9507.
Canada.
House of Commons. House of Commons Debates, vol. IX, 3rd Sess.,
34th Parl., June 15, 1992, p. 12045.
Card,
Richard. Sexual Offences: The New Law. Bristol, England: Jordans,
2004.
Fletcher, George P. Basic Concepts of Legal Thought. New York: Oxford
University Press, 1996.
Stewart,
Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law
Book, 2004 (loose-leaf updated August 2010, release 7).
Stuart,
Don. Canadian Criminal Law: A Treatise, 5th ed. Scarborough, Ont.:
Thomson Carswell, 2007.
Tanovich,
David M. “Criminalizing Sex At The Margins” (2010), 74 C.R. (6th) 86.
United
Kingdom. House of Commons. Home Affairs Committee. Sexual Offences Bill: Fifth
Report of Session 2002‑03, HC 639. London: Stationery Office, 2003.
APPEAL from a judgment of the Ontario Court of Appeal
(Simmons, Juriansz and LaForme
JJ.A.), 2010 ONCA 226, 100
O.R. (3d) 676, 253 C.C.C. (3d) 153, 74 C.R. (6th) 51, 260 O.A.C. 248, [2010]
O.J. No. 1202 (QL), 2010 CarswellOnt 1739, setting aside the accused’s
conviction for sexual assault. Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.
Christine
Bartlett‑Hughes, for the appellant.
Howard L.
Krongold and Matthew C. Webber, for
the respondent.
James C.
Martin, for the intervener the Attorney General of Canada.
Susan Chapman and Elizabeth Sheehy, for the
intervener the Women’s Legal Education and Action Fund.
The
judgment of McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and
Cromwell JJ. was delivered by
[1]
The Chief
Justice — It is a fundamental principle of Canadian law
that a person is entitled to refuse sexual contact. From this, it follows that
sexual acts performed without consent and without an honest belief in consent
constitute the crime of sexual assault. The issue raised by this appeal is
whether a person can perform sexual acts on an unconscious person if the person
consented to those acts in advance of being rendered unconscious.
[2]
The Crown argues that consent in advance of
being rendered unconscious does not change the fact that the person, while
unconscious, does not have an operating mind and is therefore incapable of
consenting to sexual acts performed on her while unconscious. It argues that
this is what the Criminal Code, R.S.C. 1985, c. C-46 , requires, and that
to hold otherwise would be to condone non-consensual sex and sexual
exploitation. The respondent, J.A., on the other hand, argues that he may
engage in sexual activity with an unconscious person, provided he does not
exceed the bounds of what the unconscious person expected. To hold otherwise,
the respondent says, is to criminalize benign and essentially consensual sexual
activity.
[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. I would therefore allow the appeal
and restore the conviction of the respondent.
I. Facts
[4]
On May 22, 2007, the respondent J.A. and his
long-time partner K.D. spent an evening together at home. While watching a
movie on the couch, they started to kiss and engage in foreplay. After some
time, they went upstairs to their bedroom and became more intimate. They both
undressed, and started kissing on the bed.
[5]
While K.D. was lying on her back, J.A. placed
his hands around her throat and choked her until she was unconscious. At
trial, K.D. estimated that she was unconscious for “less than three minutes”.
She testified that she consented to J.A. choking her, and understood that she
might lose consciousness. She stated that she and J.A. had experimented with
erotic asphyxiation, and that she had lost consciousness before.
[6]
When K.D. regained consciousness, she was on her
knees at the edge of the bed with her hands tied behind her back, and J.A. was
inserting a dildo into her anus. K.D. gave conflicting testimony about whether
this was the first time J.A. had inserted a dildo into her anus. During her
examination in chief, she stated that this was a first, and initially
maintained this answer during cross-examination by defence counsel:
[Mr.
Goldstein]: In terms of having what you referred to as a dildo inserted -- you
had said in your butt, is that something that had happened before?
[K.D.]: No, we hadn’t done that. We discussed
the possibility of it. At the moment I just went with it in the spirit of
experimentation.
[7]
However, when confronted with the transcript of
her testimony at J.A.’s bail hearing, K.D. changed her answer:
[K.D.]: . . . we had tried it one time prior.
[Mr. Goldstein]: Okay. . . .
[K.D.]: Somewhat of a drunken evening a while
ago. I do apologize.
[8]
K.D. testified that J.A. removed the dildo ten
seconds after she regained consciousness. The two then had vaginal intercourse.
When they had finished, J.A. cut K.D.’s hands loose.
[9]
K.D. made a complaint to the police on July 11.
In a videotaped statement, she told the police that she had not consented to
the sexual activity that had occurred. She later
recanted her allegation, and claimed that she made a false complaint to the
police because J.A. had threatened to seek sole custody of their two-year-old
son. J.A. was charged with aggravated assault, sexual assault,
attempting to render the complainant unconscious in order to sexually assault
her, and with breaching his probation order.
II. Judicial History
A. Ontario Court of Justice, 2008 ONCJ 195 (CanLII)
[10]
K.D. was the only witness at trial in the
Ontario Court of Justice.
[11]
Nicholas J. found J.A. not guilty of aggravated
assault and assault causing bodily harm. She concluded that K.D. had consented
to being choked into unconsciousness. The trial
judge also held that K.D. did not suffer bodily harm since the unconsciousness that she experienced was only
transient. Nicholas J. found that the complainant consented to being
choked.
[12]
However, Nicholas J. found J.A. guilty of sexual
assault. She described K.D.’s conflicting testimony as “typical . . . of a recanting complainant in a domestic matter”
(para. 8). She concluded that K.D. had not consented to the insertion of the
dildo, and that this was the first time that the couple had engaged in this
sexual activity (para. 41).
[13]
In the alternative, the trial judge held that
K.D. could not “legally consent to sexual activity that takes place when she is
unconscious” (para. 45).
[14]
J.A. was also found guilty of breaching his
probation order.
B. Ontario Court of Appeal, 2010 ONCA 226, 100 O.R. (3d) 676
[15]
J.A. successfully appealed his convictions to
the Ontario Court of Appeal. The court unanimously held that there was
insufficient evidence at trial to conclude beyond a reasonable doubt that K.D.
did not consent to the insertion of the dildo in advance of unconsciousness (Simmons
J.A., at para. 55; LaForme J.A., at para. 114). The court split on whether
such consent would be legally valid.
[16]
On behalf of the majority, Simmons J.A. held
that individuals could consent in advance to sexual activity that occurs while
they are unconscious. She emphasized that the Crown
must prove the absence of consent in order to establish the actus reus of
sexual assault. She reasoned that if an individual consents in advance to
sexual activity taking place while she is unconscious, and never changes her
mind, “[t]he only state of mind ever experienced by the person is that of
consent” (para. 77).
[17]
The majority also rejected the Crown’s argument
that consent in this case was vitiated by the intentional infliction of bodily
harm. Simmons J.A. agreed with the Crown that the
trial judge had committed an error of law in her analysis of bodily harm, but
held that bodily harm could not be relied upon to vitiate consent in the case
of sexual assault simpliciter.
[18]
LaForme J.A. dissented, holding that the
definition of consent for the purposes of sexual assault required the
individual to have an active mind throughout the sexual activity. He based his
conclusion on this Court’s decision in R. v. Ewanchuk, [1999] 1 S.C.R.
330, stating that this decision “conclusively establishes that a prior consent
is not effective as a matter of law because unconsciousness deprives the person
consenting of the ability to express consent or know whether they are
consenting at the time the sexual activity occurs” (para. 117).
[19]
LaForme J.A. also held that the Criminal Code
defined consent as an ongoing state of mind, and that consent ceases “as
soon as the complainant falls unconscious and is incapable of consenting”
(para. 123). He noted that the Criminal Code allowed individuals to
revoke their consent at any time during the sexual activity.
[20]
LaForme J.A. did not discuss whether bodily harm
could vitiate consent in the case of sexual assault simpliciter.
However, he did state that he only disagreed with Simmons J.A.’s discussion of
unconscious consent (para. 113).
III. Analysis
A. Issue on Appeal
[21]
The only question before this Court is whether
consent for the purposes of sexual assault requires the complainant to be
conscious throughout the sexual activity. This is because the Crown appeals to
this Court as of right on the basis of “any question of law on which a judge of
the court of appeal dissents”: Criminal
Code, s. 693(1) (a). Accordingly, whether the complainant consented in fact or suffered
bodily harm are not at issue; nor is the Court of Appeal’s holding that, for
reasons of procedural fairness, the Crown in this case cannot rely on bodily
harm to vitiate consent since it did not formally allege that bodily harm occurred.
Since the issue of bodily harm is not before this Court, I take no position on
whether or in which circumstances individuals may consent to bodily harm during
sexual activity. In my view, it would be inappropriate to decide the matter
without the benefit of submissions from interested groups.
B. Framework of Sexual Assault
[22]
Before turning to the issue in this case, it is
useful to consider the framework of the law of sexual assault.
[23]
A conviction for sexual assault under s. 271(1)
of the Criminal Code requires proof beyond a reasonable doubt of the actus
reus and the mens rea of the offence. A person commits the actus
reus if he touches another person in a sexual way without her consent.
Consent for this purpose is actual subjective consent in the mind of the
complainant at the time of the sexual activity in question: Ewanchuk.
As discussed below, the Criminal Code, s. 273.1(2) , limits this
definition by stipulating circumstances where consent is not obtained.
[24]
A person has the required mental state, or mens
rea of the offence, when he or she knew that the complainant was not
consenting to the sexual act in question, or was reckless or wilfully blind to
the absence of consent. The accused may raise the defence of honest but
mistaken belief in consent if he believed that the complainant communicated
consent to engage in the sexual activity. However, as discussed below,
ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on
this defence. For instance, the accused cannot argue that he misinterpreted
the complainant saying “no” as meaning “yes” (Ewanchuk, at para. 51).
[25]
The issue in this case is whether the
complainant consented, which is relevant to the actus reus; the Crown
must prove the absence of consent to fulfill the requirements of the wrongful
act. However, the provisions of the Criminal Code with respect to the mens
rea defence of honest but mistaken belief also shed light on the issue of
whether consent requires the complainant to have been conscious throughout the
duration of the sexual activity.
[26]
The relevant provisions of the Criminal Code
are ss. 265 , 273.1 and 273.2 .
[27]
The Criminal Code defines sexual assault
as an assault that is committed in circumstances of a sexual nature. Section
265 provides that:
265. (1) A person commits an assault when
(a) without
the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
(b) he
attempts or threatens, by an act or a gesture, to apply force to another
person, if he has, or causes that other person to believe on reasonable grounds
that he has, present ability to effect his purpose; or
(c) while
openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
(2) This section applies
to all forms of assault, including sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm and aggravated sexual
assault.
.
. .
[28]
Parliament has enacted provisions that
specifically define consent for the purpose of sexual assault. In particular,
s. 273.1 establishes as follows:
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent”
means, for the purposes of sections 271, 272 and 273, the voluntary agreement
of the complainant to engage in the sexual activity in question.
(2) No consent is obtained,
for the purposes of sections 271, 272 and 273, where
(a) the
agreement is expressed by the words or conduct of a person other than the
complainant;
(b)
the complainant is incapable of consenting to the activity;
(c) the
accused induces the complainant to engage in the activity by abusing a position
of trust, power or authority;
(d) the
complainant expresses, by words or conduct, a lack of agreement to engage in
the activity; or
(e) the
complainant, having consented to engage in sexual activity, expresses, by words
or conduct, a lack of agreement to continue to engage in the activity.
(3)
Nothing in subsection (2) shall be construed as limiting the circumstances
in which no consent is obtained.
[29]
The definition of consent for the purposes of
sexual assault is found in s. 273.1(1). In order to clarify this broad
definition, Parliament provides a non-exhaustive list of circumstances in which
no consent is obtained in s. 273.1(2) . Section 273.1(3) authorizes the courts to
identify additional cases in which no consent is obtained, in a manner
consistent with the policies underlying the provisions of the Criminal Code .
[30]
The defence of honest but mistaken belief in
consent was recognized and limited by Parliament in s. 273.2 of the Criminal
Code :
273.2 It is not a defence to a charge under section
271, 272 or 273 that the accused believed that the complainant consented to the
activity that forms the subject-matter of the charge, where
(a) the accused’s
belief arose from the accused’s
(i) self-induced
intoxication, or
(ii) recklessness
or wilful blindness; or
(b) the
accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
C. The Concept of Consent Under the Criminal Code
[31]
The foregoing provisions of
the Criminal Code indicate that Parliament
viewed consent as the conscious agreement of the complainant to engage in every
sexual act in a particular encounter.
[32]
The proper approach to statutory interpretation
was summarized in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,
[2005] 2 S.C.R. 601: “The interpretation of a statutory provision must be made
according to a textual, contextual and purposive analysis to find a meaning
that is harmonious with the Act as a whole.” The Court emphasized that while “[t]he
relative effects of ordinary meaning, context and purpose on the interpretive
process may vary, . . . in all cases the court must seek to read the provisions
of an Act as a harmonious whole” (para. 10).
[33]
It follows that we must seek to interpret the
provisions that deal with consent in a harmonious way. Applying this approach,
we see that Parliament defined consent in a way that requires the complainant
to be conscious throughout the sexual activity in question. The issue is not
whether the Court should identify a new exception that vitiates consent to
sexual activity while unconscious (see reasons of Fish J., at para. 95), but
whether an unconscious person can qualify as consenting under Parliament’s definition.
[34]
Consent for the purposes of sexual assault is
defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage
in the sexual activity in question”. This suggests that the consent of
the complainant must be specifically directed to each and every sexual act,
negating the argument that broad advance consent is what Parliament had in
mind. As discussed below, this Court has also interpreted this provision as
requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26).
[35]
Section 273.1(2) provides a non-exhaustive list
of circumstances in which no consent is obtained. These examples shed further
light on Parliament’s understanding of consent.
[36]
Section 273.1(2) (b) provides that no
consent is obtained if “the complainant is incapable of consenting to the
activity”. Parliament was concerned that sexual acts might be perpetrated on
persons who do not have the mental capacity to give meaningful consent. This
might be because of mental impairment. It also might arise from
unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777; R. v. Humphrey
(2001), 143 O.A.C. 151, at para. 56, per Charron J.A. (as she then was).
It follows that Parliament intended consent to mean the conscious consent of an
operating mind.
[37]
The provisions of the Criminal Code that relate
to the mens rea of sexual assault confirm that individuals must be
conscious throughout the sexual activity. Before considering these provisions,
however, it is important to keep in mind the differences between the meaning of
consent under the actus reus and under the mens rea: Ewanchuk,
at paras. 48-49. Under the mens rea defence, the issue is whether the
accused believed that the complainant communicated consent. Conversely,
the only question for the actus reus is whether the complainant was
subjectively consenting in her mind. The complainant is not required to express
her lack of consent or her revocation of consent for the actus reus
to be established.
[38]
With this caution in mind, I come to the three
provisions that relate to the mens rea that are relevant to the issue in
this case: s. 273.1(2) (d), s. 273.1(2) (e) and s. 273.2 (b).
[39]
Section 273.1(2) (d) provides that there
can be no consent if the “complainant expresses, by words or conduct, a lack of
agreement to engage in the activity”. Since this provision refers to the
expression of consent, it is clear that it can only apply to the accused’s mens
rea. The point here is the linking of lack of consent to any
“activity”. This suggests a present, ongoing conception of consent, rather
than advance consent to a suite of activities.
[40]
Section 273.1(2) (e) establishes that it
is an error of law for the accused to believe that the complainant is still
consenting after she “expresses . . . a lack of agreement to continue to engage
in the activity”. Since this provision refers to the expression of consent, it
is clear that it can only apply to the accused’s mens rea. Nonetheless,
it indicates that Parliament wanted people to be capable of revoking their
consent at any time during the sexual activity. This in turn supports the view
that Parliament viewed consent as the product of a conscious mind, since a
person who has been rendered unconscious cannot revoke her consent. As a
result, the protection afforded by s. 273.1(2) (e) would not be available
to her.
[41]
According to my colleague, Fish J., s. 273.1(2) (e)
“suggests that the complainant’s consent can be given in advance, and
remains operative unless and until it is subsequently revoked” (para. 104 (emphasis
in original)). With respect, I cannot accept this interpretation. The
provision in question establishes that the accused must halt all sexual contact
once the complainant expresses that she no longer consents. This does not mean
that a failure to tell the accused to stop means that the complainant must have
been consenting. As this Court has repeatedly held, the complainant is not
required to express her lack of consent for the actus reus to be established.
Rather, the question is whether the complainant subjectively consented in her
mind: Ewanchuk; R. v. M. (M.L.), [1994] 2 S.C.R. 3.
[42]
Section 273.2 sheds further light on
Parliament’s conception of consent. Section 273.2 (b) states that a
person wishing to avail himself of the mens rea defence must not only
believe that the complainant communicated her consent (or in French, “l’accusé
croyait que le plaignant avait consenti” (s. 273.2 )), but must also have taken reasonable steps to ascertain whether she
“was consenting” to engage in the sexual activity in question at the time it
occurred. How can one take reasonable steps to ascertain whether a person is
consenting to sexual activity while it is occurring if that person is
unconscious? Once again, the provision is grounded in the assumption that the
complainant must consciously consent to each and every sexual act. Further, by
requiring the accused to take reasonable steps to ensure that the complainant “was
consenting”, Parliament has indicated that the consent of the complainant must
be an ongoing state of mind.
[43]
The question in this case is whether Parliament
defined consent in a way that extends to advance consent to sexual acts
committed while the complainant is unconscious. In my view, it did not.
J.A.’s contention that advance consent can be given to sexual acts taking place
during unconsciousness is not in harmony with the provisions of the Code
and their underlying policies. These provisions indicate that
Parliament viewed consent as requiring a “capable” or operating mind, able to
evaluate each and every sexual act committed. To hold otherwise runs counter
to Parliament’s clear intent that a person has the right to consent to
particular acts and to revoke her consent at any time. Reading these
provisions together, I cannot accept the respondent’s contention that an
individual may consent in advance to sexual activity taking place while she is
unconscious.
D. The Concept of Consent in the
Jurisprudence
[44]
The jurisprudence has consistently interpreted
consent as requiring a conscious, operating mind, capable of granting, revoking
or withholding consent to each and every sexual act. While the issue of
whether advance consent can suffice to justify future sexual acts has not come
before this Court prior to this case, the tenor of the jurisprudence undermines
this concept of consent.
[45]
As held by Major J. in Ewanchuk, “[t]he
absence of consent . . . is subjective and determined by reference to the
complainant’s subjective internal state of mind towards the touching, at
the time it occurred” (para. 26 (emphasis added)). The trier of fact must
determine what was going on in the mind of the complainant in response to the
touching. The majority repeatedly underlined that the focus is on the
complainant’s “state of mind”: paras. 26, 27, 29, 30, 33, 34 and 48; see also R.
v. Park, [1995] 2 S.C.R. 836, at para. 16, referring to the consent of the
complainant as a “mental state” (per L’Heureux-Dubé J.). Moreover, as
noted above, the complainant is not required to express her lack of consent: M. (M.L.). Rather, the absence of
consent is established if the complainant was not experiencing the state of
mind of consent while the sexual activity was occurring.
[46]
The only relevant period of time for the
complainant’s consent is while the touching is occurring: Ewanchuk, at para.
26. The complainant’s views towards the touching before or after are not
directly relevant. An offence has not occurred if the complainant consents at
the time but later changes her mind (absent grounds for vitiating consent).
Conversely, the actus reus has been committed if the complainant was not
consenting in her mind while the touching took place, even if she expressed her
consent before or after the fact.
[47]
The jurisprudence of this Court also establishes
that there is no substitute for the complainant’s actual consent to the sexual
activity at the time it occurred. It is not open to the defendant to argue that
the complainant’s consent was implied by the circumstances, or by the
relationship between the accused and the complainant. There is no defence of
implied consent to sexual assault: Ewanchuk, at para. 31.
[48]
The cases on the mens rea defence of
honest but mistaken belief in consent take the same view. At common law, this
was a standard defence of mistake of fact: the accused was not guilty if
he honestly believed a state of facts, which, if true, would have rendered his
conduct lawful: Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at pp. 134 and 139. In Ewanchuk, this
Court held that it is not sufficient for the accused to have believed that the
complainant was subjectively consenting in her mind: “In order to cloak the
accused’s actions in moral innocence, the evidence must show that he believed
that the complainant communicated consent to engage in the sexual activity
in question” (para. 46 (emphasis in original)). See also Park, at
para. 39 (per L’Heureux-Dubé J.). It thus is
not sufficient for the accused to have believed the complainant was consenting:
he must also take reasonable steps to ascertain consent, and must believe that
the complainant communicated her consent to engage in the sexual activity in
question. This is impossible if the complainant is unconscious.
[49]
The respondent argues that my dissenting reasons
in Esau suggest that an individual may consent while unconscious for
purposes of the actus reus of the offence. The issue in that case was
whether the defence of honest but mistaken belief was available where the
complainant asserted that she was unconscious due to drunkenness at the time of
the sexual activity. The majority of the Court, per Major J., held that
the evidence sufficed to raise a basis for the defence. My dissenting reasons
argued that the defence did not arise because an unconscious complainant “lacks
the capacity to communicate a voluntary decision to consent. . . . To put it
another way, the necessary (but not sufficient) condition of consent — the
capacity to communicate agreement — is absent” (para. 73). I further stated:
The
hypothetical case of a complainant giving advance consent to sexual contact
before becoming unconscious does not constitute an exception. Consent can be
revoked at any time. The person who assaults an unconscious woman cannot know
whether, were she conscious, she would revoke the earlier consent. He
therefore takes the risk that she may later claim she was assaulted without
consent. [ibid.]
[50]
Simmons J.A. read this passage as supporting the
view that an individual may consent while unconscious (para. 82). However, the
point of the passage is simply to cast doubt on whether the defence of honest
but mistaken belief can arise with respect to an unconscious complainant,
assuming (without deciding) that the actus reus could be made out. The
passage thus does not support the view that advance consent prior to
unconsciousness can establish consent for purposes of the actus reus of
the offence.
E. The Arguments to the Contrary
[51]
The issue in this case relates only to the actus
reus of sexual assault. The question is whether advance consent can
establish consent to sexual activity committed on a person who has been
rendered unconscious. The foregoing discussion of the provisions of the Criminal
Code and the jurisprudence suggests that the answer to this question is
no. However, before concluding on the matter, we must examine the arguments
put against this conclusion.
[52]
The first argument is that advance consent
equals actual consent because the complainant cannot change her mind after
being rendered unconscious. Simmons J.A. accepted this argument: “Where a
person consents in advance to sexual activity expected to occur while
unconscious and does not change their mind, I fail to see how the Crown can
prove lack of consent. The only state of mind ever experienced by the person
is that of consent” (para. 77).
[53]
This argument runs contrary, however, to this Court’s
conclusion in Ewanchuk that the only relevant period for ascertaining
whether the complainant consented under the Criminal Code is while
the touching is occurring (para. 26). When the complainant loses
consciousness, she loses the ability to either oppose or consent to the sexual
activity that occurs. Finding that such a person is consenting would
effectively negate the right of the complainant to change her mind at any point
in the sexual encounter.
[54]
The second argument is that the law should carve
out an exception to the general requirement of conscious, ongoing consent to
sexual contact, because this is required to deal with the special concerns
unconsciousness raises.
[55]
J.A. submits that this is what the law has done
in the medical field, where the common law recognizes that doctors may perform
surgery on unconscious patients. This argument fails to appreciate, however,
that consent functions differently in different contexts: G. P. Fletcher,
Basic Concepts of Legal Thought (1996), at p. 112. A number of
considerations make consent to sexual activity different from consent in other
contexts such as medical interventions, and property transactions. Parliament
has indicated that the notion of consent for sexual assault is distinct from
consent in other contexts (Criminal Code, ss. 273.1 and 273.2 ). It has
also enacted special protections for medical practitioners, exempting them
“from criminal responsibility for performing a surgical operation on any person
for the benefit of that person” (s. 45 ). Consequently, the fact that
individuals may consent in advance to surgery does not determine if they may
consent in advance to sexual activity. The body of pragmatic, context-specific
rules of consent to govern medical operations developed by Parliament and at
common law does not permit this Court to overrule the requirements in the Criminal
Code for consent to sexual acts. Moreover, the two situations are
different. The pragmatic considerations that inform the definition of consent
in the context of surgical operations differ from those that arise in the case
of sexual activity. Surgical interventions are usually carefully planned, and
appropriate consent is assured by consent forms and waivers — all to the end of
limiting the risk of abuse. Such safeguards are rare, if perhaps non-existent,
in the sexual arena.
[56]
Along the same lines, the respondent and Simmons
J.A. cite the example of two friends who agree before going to a party to
assist each other in getting home if either should pass out from drinking too
much. In such a case, the argument goes, the individual who assists her friend
should be commended, rather than charged with assault and kidnapping because
the friend was not capable of consenting while unconscious.
[57]
Again, the analogy is not exact. In the case of
non-sexual assaults, consent may, where appropriate, be implied at common law:
R. v. Cuerrier, [1998] 2 S.C.R. 371, at para. 52, per
McLachlin J. (as she then was); R. v. Jobidon, [1991] 2
S.C.R. 714, at p. 743, per Gonthier J. This Court, applying the common
law, has recognized cases in which the social setting and the relationship
between the parties implies consent to non-sexual touching, such as shaking
hands at a business meeting or colliding with a hockey player on the ice.
Conversely, in interpreting the provisions of the Criminal Code that
relate to sexual assault, this Court has expressly rejected the notion of
implied consent: Ewanchuk, at para. 31.
[58]
The respondent also argues that requiring
conscious consent to sexual activity may result in absurd outcomes. He cites
the example of a person who kisses his sleeping partner. In that situation, he
argues, the accused would be guilty of sexual assault unless he is permitted to
argue that his sleeping partner consented to the kiss in advance.
[59]
The first difficulty
with altering the definition of consent to deal with the respondent’s
hypothesis is that it would only provide a defence where the complainant specifically
turns her mind to consenting to the particular sexual acts that later occur
before falling asleep. The respondent’s position is that there is no sexual
assault in this case because the complainant consented to both being rendered
unconscious and to engaging in the sexual activity that occurred while she was
unconscious. If a hypothetical complainant did not expect her partner to kiss
her — or whatever other acts are at issue — while she was asleep, the respondent’s
approach would not provide a defence.
[60]
The second difficulty is the risk that the unconscious person’s wishes
would be innocently misinterpreted by his or her partner. Sexual preferences
may be very particular and difficult for individuals to precisely express. If
the accused fails to perform the sexual acts precisely as the complainant would
have wanted — by neglecting to wear a condom for instance — the unconscious
party will be unintentionally violated. In
addition to the risk of innocent misinterpretation, the respondent’s position does
not recognize the total vulnerability of the unconscious partner and the need
to protect this person from exploitation. The unconscious partner cannot
meaningfully control how her person is being touched, leaving her open to
abuse: R. v. Osvath (1996), 46 C.R. (4th) 124 (Ont. C.A.), per Abella
J.A. (as she then was), dissenting.
[61]
A third difficulty is evidentiary. 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. Only one person really
knows what happened during the period of unconsciousness, leaving the
unconscious party open for exploitation. The complainant may never discover
that she was in fact the victim of a sexual assault. Fish J. correctly points
out that in some cases, there may be forensic evidence that establishes
conclusively that the accused exceeded the bounds of the consent given.
However, if the complainant never suspects that a sexual assault has occurred,
no forensic evidence will be gathered. Moreover, many acts of
sexual assault leave no forensic evidence.
[62]
A fourth difficulty is jurisprudential. Recognizing exceptions to the
requirement of conscious consent would not only run counter to the definition
of consent in the Criminal Code , but would impose on the courts the task
of determining how consent to unconscious sexual activity can be proven. The
respondent suggests that the court could ask if the complainant consented
before losing consciousness to the sexual acts that subsequently occurred —
pre-unconsciousness authorization. This would require the court to determine
what the unconscious party wanted just prior to going unconscious, and then
assess if this is what indeed occurred. This inquiry would be objective,
contrary to the subjective inquiry required by the Criminal Code . The
only other option — post-unconsciousness determination of consent where the
complainant decides when she regains consciousness if she would have consented
to all the acts that occurred — is also problematic. A post facto
determination runs contrary to the rule that the complainant’s post-act
sentiments are irrelevant; if a complainant consents to sexual activity while
it is taking place, but later decides that she should not have, the accused
should be acquitted on the actus reus of the offence.
[63]
The Crown suggested that this Court could allow for
mild sexual touching that occurs while a person is unconscious by relying on
the de minimis doctrine, based on the Latin phrase de minimis
non curat lex, or the “law does not care for small or trifling matters”: Canadian Foundation for Children, Youth and the Law v. Canada
(Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76,
at para. 200, per Arbour J., dissenting. Without suggesting that the de
minimis principle has no place in the law of sexual assault, it should be
noted that even mild non-consensual touching of a sexual nature can have
profound implications for the complainant.
[64]
Running through the arguments in favour of carving out
particular circumstances as exceptions to the conscious consent paradigm of the
Criminal Code is the suggestion that the strict approach Parliament has
adopted toward consent in the context of sexual assault has no place in
relationships of mutual trust, like marriage. However, accepting this view
would run counter to Parliament’s clear rejection of defences to sexual assault
based on the nature of the relationship. The Criminal Code does not
establish a different inquiry into consent depending on the relationship
between the accused and the complainant. Their relationship may be evidence
for both the actus reus and the mens rea, but it does not
change the nature of the inquiry into whether the complainant consented, as
conceived by the Criminal Code .
[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.
IV. Summary
[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 .
V. Disposition
[67]
I would allow the appeal, and restore the respondent’s
conviction for sexual assault.
The reasons of
Binnie, LeBel and Fish JJ. were delivered by
Fish J. (dissenting) —
I
[68]
It is a fundamental principle of the law
governing sexual assault in Canada that no means “no” and only yes means “yes”.
[69]
K.D., the complainant in this case, said yes,
not no. She consented to her erotic asphyxiation by the respondent, J.A., her
partner at the time. Their shared purpose was to render K.D. unconscious and
to engage in sexual conduct while she remained in that state. It is undisputed
that K.D.’s consent was freely and voluntarily given — in
advance and while the conduct was still in progress. Immediately
afterward, K.D. had intercourse with J.A., again consensually.
[70]
K.D. first complained to the police nearly two
months later when J.A. threatened to seek sole custody of their two-year-old
child. She later recanted.
[71]
We are nonetheless urged by the Crown to find
that the complainant’s yes in fact means no in law. With respect
for those who are of a different view, I would decline to do so.
[72]
The provisions of the Criminal Code,
R.S.C. 1985, c. C-46 , regarding consent to sexual contact and the case law
(including R. v. Ewanchuk, [1999] 1 S.C.R. 330) relied on by the Crown
were intended to protect women against abuse by others. Their mission is not
to “protect” women against themselves by limiting their freedom to
determine autonomously when and with whom they will engage in the sexual
relations of their choice. Put differently, they aim to safeguard and enhance
the sexual autonomy of women, and not to make choices for them.
[73]
The Crown’s position, if adopted by the Court,
would achieve exactly the opposite result. It would deprive women of their
freedom to engage by choice in sexual adventures that involve no proven harm to
them or to others. That is what happened here.
[74]
Adopting the Crown’s position would also require
us to find that cohabiting partners across Canada, including spouses, commit a
sexual assault when either one of them, even with express prior consent,
kisses or caresses the other while the latter is asleep. The absurdity of this
consequence makes plain that it is the product of an unintended and
unacceptable extension of the Criminal Code provisions upon which the
Crown would cause this appeal to rest.
[75]
Lest I be misunderstood to suggest otherwise, I
agree that consent will be vitiated where the contemplated sexual activity
involves a degree of bodily harm or risk of fatal injury that cannot be
condoned under the common law, or on grounds of public policy. Asphyxiation to
the point of unconsciousness may well rise to that level, but the contours of
this limitation on consent have not been addressed by the parties. Nor has the
matter been previously considered by the Court. For procedural reasons as well,
the issue of bodily harm must be left for another day.
[76]
I agree as well that prior consent affords no
defence where it is later revoked or where the ensuing conduct does not comply
with the consent given.
[77]
Applying these principles here, I would dismiss
the appeal.
[78]
Finally, I think it helpful to set out succinctly the issue on this
appeal.
[79]
According to the Chief Justice, the question is “whether an unconscious
person can qualify as consenting [to sexual activity]” (para. 33). With
respect, that is not the question at all: No one has suggested in this
case that an unconscious person can validly consent to sexual activity.
[80]
Rather, the question is whether a conscious person can freely and
voluntarily consent in advance to agreed sexual activity that will occur while
he or she is briefly and consensually rendered unconscious. My colleague would
answer that question in the negative; I would answer that question in the
affirmative, absent a clear prohibition in the Criminal Code , absent
proven bodily harm that would vitiate consent at common law, and absent any
evidence that the conscious partner subjected the unconscious partner to sexual
activity beyond their agreement.
[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.
II
[83]
The Chief Justice has set out the relevant facts
fully and fairly, and I have nothing to add in that regard.
[84]
This is an appeal as of right by the Crown. In
the absence of leave on any other grounds — none was
sought by the Crown — our jurisdiction is therefore
limited to the question of law alone upon which there was a dissent in the
Court of Appeal. That question is set out this way in the Crown’s notice of
appeal:
As
a matter of law can a person consent in advance to sexual activity expected to
occur when the person is either unconscious or asleep?
[85]
In this light, three defining aspects of this
appeal merit special emphasis.
[86]
First, as the Chief Justice has noted (at para.
15), the Court of Appeal found, unanimously, that “the evidence that was led at
trial was simply not capable of supporting a finding that the complainant did
not consent on a standard of proof beyond a reasonable doubt” (2010 ONCA 226,
100 O.R. (3d) 676, per Simmons J.A., Juriansz J.A. concurring, at para.
55; per LaForme J.A., at para. 114). Accordingly, this finding is not
open to dispute before us (R. v. Keegstra, [1995] 2 S.C.R. 381, at
paras. 23-24).
[87]
Second, the Court of Appeal found, again
unanimously, that there was no basis for a finding of fact that the sexual
conduct that occurred did not comply with the consent given by K.D. Speaking
for herself and Juriansz J.A., Simmons J.A. held (at para. 89):
. . . the trial judge’s conclusions
regarding the sexual assault charge were premised, at least in part, on the
trial judge’s finding that the complainant did not, at any time, consent to
anal penetration of any kind. As I have explained, in my opinion, the record
in this case is not capable of supporting that finding of fact.
[Emphasis added.]
And LaForme J.A. (at
paras. 112-13) made clear that he agreed with the “thorough and persuasive
analysis” of Simmons J.A. except only for her conclusion that “there is no
basis for holding that ‘as a matter of general principle, a person cannot
legally consent in advance to sexual activity expected to occur while the
person is either unconscious or asleep’”.
[88]
Third, the trial judge found that the
asphyxiation causing unconsciousness in this case did not constitute bodily
harm. This finding was set aside by the Court of Appeal, once more unanimously,
on the ground that the trial judge had applied the wrong legal test in
concluding as she did. Largely for reasons of procedural fairness, the court
declined to revisit the Crown’s submission that the complainant’s asphyxiation
constituted bodily harm, vitiating her consent under the common law. The record
as we have it affords us no sufficient basis for revisiting this issue. As I
mentioned earlier, whether asphyxiation causing unconsciousness will vitiate
consent therefore remains an open question to be answered when the need next
arises.
[89]
In short, then, we are urged on this appeal to
find that J.A. committed a sexual assault on K.D., his partner at the time, by
engaging with her in sexual activity to which she had agreed in advance, and
agreed again while that activity was still in progress, without causing her
bodily harm and without exceeding the scope of her consent. In the Crown’s
submission, J.A.’s guilt of this serious crime can be grounded in the brief
intervening period of unconsciousness that occurred during his sexual encounter
with K.D., before and after which K.D. neither subjectively experienced nor
affirmatively communicated a revocation of her prior consent.
[90]
Essentially, the Crown contends that J.A.
committed a sexual assault on K.D. because prior consent to sexual touching
that is anticipated to occur during a period of unconsciousness is precluded by
the Criminal Code and by this Court’s decision in Ewanchuk.
Alternatively, the Crown argues that K.D.’s consent should be declared invalid
at common law on the basis of public policy.
[91]
For the reasons that follow, I find neither
argument persuasive.
III
[92]
I begin with a consideration of the provisions
of the Criminal Code upon which the Crown relies.
[93]
The starting point in determining whether the
complainant’s consent will be recognized at law is that “the genuine consent of
a complainant has traditionally been a defence to almost all forms of criminal
responsibility” (R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 729). Despite the fact that “a number of exceptions [have
been] imposed by Parliament and also, increasingly, by the courts”, this
principle still “underpin[s] Canadian law” (D. Stuart, Canadian Criminal
Law: A Treatise (5th ed. 2007), at p. 587).
[94]
Consent is frequently referred to as a “defence”,
as in Jobidon, and can be thought of in that way insofar as it negates
liability. On a charge of sexual assault, however, we must remember throughout
that the absence of consent is an essential element of the actus reus
and must therefore be proved, beyond a reasonable doubt, by the Crown.
[95]
The Chief Justice finds that Parliament has
created a statutory exception to the well-established general principle that
the complainant’s genuine consent precludes a finding of sexual assault. In my
colleague’s view, the purpose and effect of this perceived exception is to
vitiate consent to “unconscious sexual activity” — that
is, sexual contact that is expected to occur while the consenting adult is
asleep or unconscious. With respect, nothing in the Criminal Code indicates
that Parliament has considered, let alone adopted, an exception of this sort.
[96]
Section 273.1(1) of the Code defines
consent for the purposes of the sexual assault provisions as “the voluntary
agreement of the complainant to engage in the sexual activity in
question”. Nothing in this definition refers to the timing of consent or
otherwise excludes advance consent to unconscious sexual contact. And it is
important to remember that, on this appeal, neither the voluntariness nor the specificity of the complainant’s consent is
in issue before us.
[97]
On the contrary, as the Court of Appeal found, there is no basis in the
evidence to support a finding that the complainant did not freely and
consciously consent to “the sexual activity in question”: erotic asphyxiation
involving anal penetration during the contemplated period of transitory
unconsciousness, followed by vaginal intercourse.
[98]
Section 273.1(1) also provides that the
definition of consent is subject to two limiting provisions.
[99]
The first is s. 265(3), which applies to all forms
of assault and specifies that no consent is obtained where the complainant
submits or does not resist by reason of force, threats of force, fraud or the
exercise of authority. Manifestly, none of these statutory exceptions apply
here.
[100]
The second limiting provision, s. 273.1(2) ,
applies only to sexual assaults and sets out five situations in which “[n]o
consent is obtained”. Only two are relied on by the Crown: s. 273.1(2) (b)
and s. 273.1(2) (e).
[101]
Section 273.1(2) (b) provides that “[n]o
consent is obtained . . . where . . . the complainant is
incapable of consenting to the activity”. I agree that unconsciousness
qualifies as “incapa[city]” within the meaning of this provision. But it is
apparent from the ordinary meaning of the words used by Parliament and from
their context that s. 273.1(2) (b) has no application here. It simply
confirms that consent cannot be obtained from a person who is at the
time incapable of consenting. It does not contemplate consent given in advance
at a time when the complainant, as in this case, was capable —
not incapable — of
giving her free and knowing consent.
[102]
Section 273.1(2) (e), the second exception
invoked by the Crown, provides that no consent is obtained where “the
complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity”.
The Crown submits, and the Chief Justice accepts, that this provision is
inconsistent with the possibility of advance consent to unconscious sexual
touching because Parliament intended people engaged in sexual activity to have
the right to revoke consent at any time during the activity and “a person who
has been rendered unconscious cannot revoke her consent” (reasons of the Chief
Justice, at para. 40).
[103]
I agree that prior consent to sexual activity
can later be revoked. And I agree that a person cannot while unconscious
consent or revoke consent. It hardly follows, in my respectful view, that
consenting adults cannot, as a matter of law, willingly and consciously agree
to engage in a sexual practice involving transitory unconsciousness — on the
ground that, during the brief period of that consensually induced mental state,
they will be unable to consent to doing what they have already consented to
do.
[104]
If anything, the wording of s. 273.1(2) (e)
suggests that the complainant’s consent can be given in advance, and
remains operative unless and until it is subsequently revoked: It provides that
“the complainant, having consented to engage in sexual activity”, may
later revoke his or her consent. I agree with the respondent that revocation
is a question of fact. In this regard, I again mention that the complainant,
upon regaining consciousness, did not revoke her prior consent to the sexual
conduct in issue — which was then still ongoing. And it has not been suggested
that she had earlier revoked her consent by words or conduct, or even in her
own mind.
[105]
With respect, there is no factual or legal basis
for holding that K.D.’s prior consent, otherwise operative throughout, was
temporarily rendered inoperative during the few minutes of her voluntary
unconsciousness. In my view, it was not suspended by the fact that she had
rendered herself incapable of revoking the consent she had chosen, freely and
consciously, not to revoke either immediately before or immediately
after the brief interval of her unconsciousness. Nothing in s. 273.1(2) (e)
creates a legal requirement, or a binding legal fiction, that warrants
convicting the complainant’s partner of sexual assault in these circumstances.
[106]
Finally, the Chief Justice relies on s. 273.2 (b),
which precludes a defence of honest but mistaken belief in consent where “the
accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting”. The
Chief Justice finds that, “by requiring the accused to take reasonable steps to
ensure that the complainant ‘was consenting’, Parliament has indicated that the
consent of the complainant must be an ongoing state of mind” (para. 42).
[107]
With respect, I read s. 273.2 differently. It
provides that a belief in consent is not a defence where “the accused believed
that the complainant consented to the activity [in question]” and failed
to take reasonable steps “to ascertain that the complainant was consenting”. Any
doubt whether “was consenting” and “consented” refer to prior consent is
dispelled by the corresponding French text of the provision: “Ne constitue
pas un moyen de défense . . . le fait que l’accusé croyait que le plaignant avait
consenti à l’activité à l’origine de l’accusation . . . [et] n’a pas pris les mesures raisonnables . . . pour s’assurer du
consentement.”
[108]
Lest I be misunderstood in this regard, I hasten
to add that K.D.’s prior consent to the “activity in question” constituted a
valid consent only to the contemplated activity. In the absence of any
evidence that J.A.’s conduct exceeded the scope of K.D.’s consent, I am unable
to find in the mentioned provisions of the Criminal Code any basis for
concluding that K.D.’s consent in fact was not a valid consent in law.
IV
[109]
For the reasons given, I am satisfied that
nothing in the Criminal Code supports the Crown’s principal submission:
that K.D.’s consent to the activity in question was vitiated by the fact that
she could not consent, during her consensually induced unconsciousness, to the
sexual activity to which she had already consented. In the absence of any
language in the Code that supports this proposition, the Crown relies on
what in its view is the policy underlying the mentioned provisions. This
submission is not at all persuasive.
[110]
First, the provisions in question were enacted
to address policy concerns that are entirely different from those before us
here. The preamble to Bill C-49 (An Act to amend the Criminal Code (sexual
assault), 3rd Sess., 34th Parl., 1991 (assented to June 23, 1992), S.C.
1992, c. 38) and the Parliamentary debates preceding its enactment demonstrate
that the consent provisions were intended to protect women from sexual violence
and to protect and enhance their freedom to choose when, and with whom, they will
engage in sexual relations of their choice.
[111]
The dominant theme throughout the debates was
that women have “the right to make decisions about their bod[ies], including
whether or not to engage in sexual activity” and that “[n]o in every
conceivable circumstance means no” (House of Commons Debates, vol. VIII,
3rd Sess., 34th Parl., April 8, 1992, at p. 9507, and vol. IX, June 15, 1992,
at p. 12045). Legislative changes were required to ensure that a woman who
previously said “yes” to sexual activity could subsequently say “no” and be
taken seriously, first by her sexual partner and, failing that, by the police
and the courts.
[112]
These policy concerns are simply not engaged on
the facts before us: This is not a case about a woman who said no —
at any time. Rather, the complainant described herself as a willing and
enthusiastic participant throughout all stages of the sexual activity in
question. She consented to the sexual activity leading up to her
unconsciousness and to the unconsciousness itself. The Court of Appeal found,
as we have seen, that nothing in the record supports a finding that she did not
consent to the sexual activity that occurred while she was unconscious.
[113]
Moreover, we have no idea how long the anal
penetration had gone on when she awoke — she may in fact have awoken as soon as
it began — but we do know that she did not ask the accused to stop when she was
awake and knew exactly what was going on.
[114]
I am unable to conclude that Parliament, in
protecting the right to say no, restricted the right of adults, female or male,
consciously and willingly to say yes to sexual conduct in private that neither
involves bodily harm nor exceeds the bounds of the consent freely given. The
right to make decisions about one’s own body clearly comprises both rights.
[115]
Although this right to choose is not absolute, I
agree that private, consensual sexual behaviour “should only give rise to
criminal sanctions where there is a compelling principle of fundamental justice
that constitutes a reasonable limit on the right to personal and sexual autonomy”
(D. M. Tanovich, “Criminalizing Sex At The Margins” (2010), 74 C.R. (6th) 86,
at p. 90). I agree as well that “it would be a significant limit on the sexual
autonomy of each individual to say that, as a matter of law, no-one can consent
in advance to being sexually touched while asleep or unconscious” (H. C.
Stewart, Sexual Offences in Canadian Law (loose-leaf), at p. 3-25).
[116]
Respect for the privacy and sexual autonomy of
consenting adults has long been embraced by Parliament as a fundamental social
value and an overarching statutory objective: “Keeping the state out of the
bedrooms of the nation” is a legislative policy, and not just a political
slogan.
[117]
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 offence of
sexual assault. Notably, it would criminalize kissing or caressing a sleeping
partner, however gently and affectionately. The absence of contemporaneous consent,
and therefore the actus reus, would be conclusively established by accepted
evidence that the complainant was asleep at the time. Prior consent, or even an
explicit request — “kiss me before you leave for work” — would not spare the
accused from conviction.
[118]
The mens rea would be conclusively
established as well. An honest but mistaken belief in consent, however
reasonable in the circumstances, would neither preclude prosecution nor bar
conviction. If my colleague’s view is correct, the accused’s error would constitute
a mistake of law, which cannot avail as a defence.
[119]
The Crown acknowledges that, on its view of the
law, anyone who engages in amorous expressions of affection while his or her
partner is asleep would be guilty of sexual assault. In response to the
implausibility of the suggestion that Parliament intended to criminalize such
conduct, the Crown has identified only two safeguards, more aptly characterized
as palliatives that should give us little comfort: prosecutorial discretion and
the doctrine of de minimis non curat lex (the law is not concerned with
trifling matters).
[120]
As for prosecutorial discretion, I think it is
sufficient to recall that this Court, in dealing with the delicate issue of
nullifying consent at law, has in the past demonstrated a “healthy reluctance
to endorse the exercise of prosecutorial discretion as a legitimate means of
narrowing the applicability of a criminal section” (R. v. Cuerrier,
[1998] 2 S.C.R. 371, at para. 136, per Cory J.). And Justice McLachlin
(as she then was), in agreement on this point, made clear that “[p]rosecutorial
deference cannot compensate for overextension of the criminal law; it merely
replaces overbreadth and uncertainty at the judicial level with overbreadth and
uncertainty at both the prosecutorial level and the judicial level” (para. 53).
[121]
And, as for reliance on the de minimis doctrine,
I do not view sexual assault of any kind as a trifling matter. It is a serious
crime with serious consequences both for the complainant and for an accused. I
agree with the Chief Justice (at para. 63) that “even mild non-consensual
touching of a sexual nature can have profound implications for the
complainant”. For public policy reasons, the Ontario Court of Appeal has held
that it would be inappropriate to apply this principle in the context of
domestic assaults (R. v. Carson (2004), 185 C.C.C. (3d) 541, at para.
25).
[122]
Finally, even if one accepts that s. 273.1(3)
“authorizes the courts to identify additional cases in which no consent is
obtained” (reasons of the Chief Justice, at para. 29), identifying a new exception
in this case would go well beyond what Jobidon permits.
V
[123]
The Crown, LaForme J.A. in the court below, and
the Chief Justice all rely on Ewanchuk in support of their view that the
law already precludes advance consent to unconscious sexual contact.
[124]
First, it is argued that Ewanchuk establishes
that the only relevant time for determining consent is the time at which the
sexual contact takes place. This argument is based on Major J.’s comment that
the absence of consent is “determined by reference to the complainant’s
subjective internal state of mind towards the touching, at the time it occurred”
(Ewanchuk, at para. 26). Second, it is argued that one cannot
infer that an unconscious individual is consenting because there is no defence
of implied consent in the law of sexual assault.
[125]
With respect, I would reject both arguments.
[126]
The comments made in Ewanchuk must be
read in context. Most significantly, the complainant in that case did
not consent before, during or after the sexual touching. In addition, neither
incapacity nor the timing of consent were in issue. The requirement of
contemporaneity simply signifies that a woman who consents to sexual activity
remains free to withdraw her consent at any time and, in the context of this
case, that a woman cannot provide her consent while she is unconscious.
Ewanchuk does not at all establish that a woman cannot consciously and
voluntarily consent to sexual activity that will occur while she is unconscious.
[127]
Nor is the rejection of the defence of implied
consent in Ewanchuk dispositive of the issue before us. We are not
asked by the respondent to infer the complainant’s consent. Her actual
subjective consent was established through her own testimony. Ewanchuk
decided that if the complainant testifies that she did not subjectively
consent — and she is believed — then the actus reus will be made out
regardless of her outward conduct. That is not our case.
[128]
As we shall presently see, this Court has
stressed that consent should only be vitiated by judges in limited
circumstances and on a case-by-case basis. The broad nullification of consent
now proposed by my colleague can hardly be said to have been decided in Ewanchuk,
a case in which the possibility of advance consent to unconscious sexual
touching was not even remotely in issue.
VI
[129]
In Jobidon, this Court stressed that “[t]he
law’s willingness to vitiate consent on policy grounds is significantly limited”
(p. 766 (emphasis added)). As Gonthier J. took care to explain, the Court’s
decision in that case was narrowly restricted to situations in which adults
intentionally apply force to each other during the course of a fist fight or
brawl and serious hurt or non-trivial bodily harm is both intended and caused.
[130]
Since Jobidon was decided, the vitiation
of consent on grounds of public policy has been limited to situations in which
actual bodily harm was both intended and caused. In R. v. Paice,
2005 SCC 22, [2005] 1 S.C.R. 339, the majority of the Court insisted that both
constraints remain operative. To remove either requirement, the Court held,
would risk the criminalization — “by judicial fiat” — of “numerous activities
that were never intended by Parliament to come within the ambit of the assault
provisions” (para. 12).
[131]
The policy concerns identified by the Crown do
not warrant the extension of the “significantly limited” principle invoked in Jobidon
to a situation in which bodily harm was neither intended nor caused. As I have
explained, the record before us does not permit us to revisit the issue of
bodily harm addressed in the courts below. Our mandate is circumscribed by the
question of law before us, which is whether unconsciousness alone is
sufficient to nullify consent.
[132]
Essentially, the Crown urges us to answer that
question in the affirmative on three grounds: (1) the risk that the
unconscious person’s consent will be intentionally exceeded, (2) the risk of innocent
misunderstandings between the parties as to the scope of the consent, and (3)
the risk of unjust acquittals where the Crown is unable to prove that the
accused did not obtain prior consent from an unconscious person.
[133]
I am not persuaded that advance consent to
unconscious sexual activity, if held valid in the circumstances of this case,
will increase the risk that an unconscious person’s consent will be intentionally
exceeded. Intentionally exceeding the scope of the unconscious partner’s
consent would amount to sexual contact without consent — or sexual
assault — and, for that reason, properly attract criminal liability.
[134]
Unconscious sex may well involve a risk of innocent
misunderstandings between the parties as to the scope of consent. However,
this raises issues that are related not to the actus reus of the offence
(the only issue before us) but to the defence of honest but mistaken belief in
consent. If it is established that the scope of the complainant’s consent has
been exceeded, then the actus reus will be established and the inquiry
will move to whether the accused had the requisite mens rea.
[135]
Pursuant to s. 273.2(b) of the Code,
an accused cannot invoke an honest but mistaken belief in consent in the
absence of evidence that he took “reasonable steps” in the circumstances known
to him at the time “to ascertain that the complainant was consenting”.
[136]
In cases of unconscious sex, the defence of
honest but mistaken belief in consent will be extremely difficult to establish.
Since consent cannot be “obtained” from an unconscious complainant, the required
reasonable steps would have to be taken prior to the period of
unconsciousness. Relevant factors to the reasonableness assessment might
include the proximity in time between the steps taken and the period of
unconsciousness and the specificity of the agreement made between the parties.
[137]
Advance consent and a clear understanding may
well reduce rather than enhance the risk of unwanted sexual conduct. The
conscious partner, explicitly apprised, will be at risk of prosecution and
conviction if the scope of the unconscious partner’s consent is unintentionally
exceeded. If the accused’s belief in consent was honest, but not reasonable,
he or she will be guilty of sexual assault.
[138]
By making the actual subjective consent of a
complainant determinative, the law respects her sexual autonomy. At the same
time, by restricting the availability of the defence of honest but mistaken
belief in the case of complainants who do not consent, the law can
ensure that there are criminal consequences for sexually exploiting vulnerable
parties. As counsel for the respondent put it to us in oral argument, “if the
law is going to treat these situations harshly, it should treat them harshly
when people get it wrong, not when people get it right”
(transcript, at pp. 57-58 (emphasis added)).
[139]
Finally, the Crown submits that recognizing the
legal validity of advance consent to unconscious sexual touching will create a
defence that will be difficult to disprove beyond a reasonable doubt. While
refusing to invalidate prior consent may pose some evidentiary difficulties for
the Crown, I do not find this argument to be dispositive.
[140]
First, in order to secure a conviction for
sexual assault, the Crown must prove the sexual conduct alleged — an essential
element of the offence. If it can prove the sexual act (by way of forensic
evidence or an admission or confession, for example), then it will necessarily
be able to prove, through the evidence of the complainant, the required absence
of consent to that conduct.
[141]
Second, the answer to an apprehended evidentiary
problem does not lie in an unwarranted extension of the substantive law.
If Parliament thinks it necessary to address the evidentiary concern, it may do
so by more appropriate means. For example, it can satisfy that perceived need
by enacting an evidential presumption of non-consent in favour of the Crown
where it has proved that the accused engaged in sexual contact with an
unconscious person.
[142]
This is the approach taken in the United
Kingdom. Section 75 of the Sexual Offences Act 2003 (U.K.), 2003,
c. 42, creates a rebuttable presumption of non-consent where “the complainant
was asleep or otherwise unconscious” (s. 75(2)(d)). The same presumption is
made applicable to other specified situations.
[143]
One commentator has argued that “[t]he
imposition of an evidential presumption in these circumstances is not
unreasonable”, because “consent is unlikely to be present and it seems fair
rebuttably to presume that it was not”. Conversely, he argues that “a conclusive
presumption about the absence of consent” where the complainant is asleep or
unconscious “would have been Draconian” (see R. Card, Sexual Offences: The
New Law (2004), at pp. 43 and 44; see also the United Kingdom House of
Commons, Home Affairs Committee, Sexual Offences Bill: Fifth Report of
Session 2002-03, HC 639 (2003), at para. 31).
[144]
In any event, it is not unduly onerous to
require the Crown to disprove advance consent beyond a reasonable doubt. In
most cases, this will be established through the complainant’s testimony. The
Crown points to R. v. Ashlee, 2006 ABCA 244, 61 Alta. L.R. (4th) 226, as
an example of a case in which an unjust acquittal would have been entered
because the complainant was not available to testify. In my view, the tactical
burden on the Crown to call the complainant in a sexual assault case in order
to prove the absence of subjective consent (a fact uniquely known to the
complainant) should not be easily displaced. Moreover, Ashlee does not
support the Crown’s submission at all since there was no need in that case to
rely on the vitiation of consent doctrine that is said here to be necessary:
the absence of consent was evident from the circumstances and a conviction
ensued despite the complainant’s
absence.
VII
[145]
For all of these reasons, I would affirm the
judgment of the Court of Appeal and dismiss the present appeal to this Court.
Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.
Solicitor for the appellant: Attorney
General of Ontario, Toronto.
Solicitors for the
respondent: Webber Schroeder Goldstein Abergel, Ottawa.
Solicitor for the
intervener the Attorney General of Canada: Attorney General of
Canada, Halifax.
Solicitor for the
intervener the Women’s Legal Education and Action Fund: Women’s
Legal Education and Action Fund, Toronto.