1. What is the proper case citation for the case?
The proper case citation for this case is R. v. J.A. 2011 SCC 28. (It is a neutral citation). This is a criminal law decision of the Supreme Court of Canada regarding consent in cases of sexual assault.
2. Who is the Respondent and who is the Appellant?
J.A. is the Respondent while Her Majesty The Queen is the Appellant.
3. Name all the levels of court (full proper names) involved in the case.
Court of Appeals for Ontario
Trial Court of Canada
4. How many SCC justices heard the case and name all the SCC justices that heard the case?
There were Nine (9) Supreme Court judges consisting of the following: McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert.
5. Was the case a majority decision or a unanimous decision?
The case was voted by a majority decision.
6. If your case was a majority, name the justices who held the majority opinion and name the justices that held the minority opinion.
The majority decision was led by Chief Justice McLachlin, CJ as concurred by Supreme Court Justices Deschamps, Abella, Charron, Rothstein and Cromwell JJ. Meanwhile, the dissenting justices were Fish, J., LeBel and Binnie.
7. Is the case based on a Charter challenge and if so what section of the Charter is being challenged or allegedly violated?
This case is based on a charter challenge and the charter being challenged is the “The Law of Consent.” Consent is a primary element of the actus reus of all assault offences. Since 1992, the Criminal Code of Canada, R.S.C. 1985, c.C 46, has defined consent in the context of sexual assault as follows:
(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 (Judgments of the supreme Court of Canada, p. 1).
(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 not capable of consenting to the activity;
(c) the accused persuades the complainant to engage in the activity by abusing a position of confidence, authority or power;
(d) the complainant states, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, states, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as reducing the circumstances in which no consent is secured.
The jurisprudence has consistently interpreted “consent” as needing a “conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” (p. 1). The jurisprudence also states that there is no alternate for the complainant’s real consent to the sexual activity at the time it happened. It is not enough for the accused to have affirmed that the complainant was consenting: the accused should also take reasonable steps to affirm consent, and should believe that the complainant communicated her consent to engage in the sexual activity in question. The contention is that this cannot be rendered if the complainant is unconscious (p. 1).
In another case, R. v. Ewanchuk, [1999] 1 S.C.R. 330, it was rendered that the only significant time for affirming whether the complainant consented under the Criminal Code is while the touching is happening. The minority challenges this by stating that this law is not realistic in certain circumstances. In the lack of a constitutional challenge, the proper body to change the law on consent relative to sexual assault is Parliament, should it be required as needed.
8. Briefly (in one or two paragraph) summarize what happened originally to cause this case. I am not looking for a full accounting of the activities of those involved, I want a brief synopsis of what happened ie: someone was arrested, searched and/or detained that led to charges and eventually to this case.
J.A. and K.D. were long-time, intimate partners and they had a son. The case transpired when J.A. and K.D. committed “erotic asphyxiation.” This is a sexual practice which they had experimented with before, with both their consent. So, J.A. choked K.D. until she became unconscious. When the latter got back her conciousness, which she later surmised to be between three minutes, her hands were tied behind her back. K.D. was on her knees, and J.A. was inserting a dildo into her anus. At this point in the complaint, K.D. also stated that she did not consent to anal penetration. J.A. removed the dildo ten seconds after she regained consciousness. The two then had vaginal intercourse. After their sexual act, it was then that J.A. cut K.D.’s hands loose.
After two months, K.D. made a complaint to the police. She stated that while she allowed the choking, she had not consented to the sexual activity that has happened (after she regained consciousness). However, in a later statement, she recanted her allegation, explaining that she alleged this specific complaint because J.A. threatened to get main custody of their young son. J.A. was charged with various offenses, including sexualt assault, aggravated assault and breach of probation (p. 1). K.D. gave conflicting testimony about whether this was the first time J.A. had inserted a dildo into her anus.
9. What happened at the end of each level of court that led the person or Crown to appeal to the next level of Court (ie: were they found guilty, were they found not guilty, why was either side not happy with that level of Courts’ decision; something occurred that caused them to appeal to the next level of Court).
The trial judge convicted J.A. of sexual assault. Then, a majority of the Court of Appeal permitted the appeal on the ground of challenging the definition of “consent.” The Court of Appeal set aside the conviction and dismissed the charges against J.A.
Most of the justices of the Ontario Court of Appeal (such as Madam Justice Janet Simmons and Mr. Justice R.G. Juriansz) overturned the trial decision on the contention of whether K.D. could have consented as a matter of law. As the majority ruled, there was “no basis for holding that, as a matter of overall principle. This is to say that a person cannot legally consent to sexual activity prior to an expected event such as when he/she becomes unconscious or asleep” (p. 1). Instead, allowing consent in such circumstances was taken as “totally consistent” with the Supreme Court’s statement in Ewanchuk that control over one’s body “lies at the core of human dignity and autonomy” (at para. 78, citing Ewanchukat para. 28) (p. 1).
Justice Harry La Forme dissented. He maintained that “Ewanchuk conclusively establishes that prior consent is not effective as a matter of law since unconsciousness deprives the person consenting of the ability to state consent or distinguish whether they are consenting at the time the sexual activity happens” (p. 1).
All the Ontario Court of Appeal justices agreed that the evidence could not support the trial judge’s decision that the complainant had not consented, de facto, to the sexual activity being questioned on a standard of proof beyond a reasonable doubt. Thus, in the Crown’s appeal as of right to the Supreme Court of Canada, the only vital contention was if the complainant’s consent was legally valid.
Chief Justice McLachlin wrote the Supreme Court majority decision as cocnurred by Deschamps, Abella, Charron, Rothstein and Crowell JJ. This decision framed the issue as “whether consent for the purposes of sexual assault requires the complainant to be conscious throughout the sexual activity” (p. 1).
The minority disagreed with how the majority had framed the issue in the case as they affirmed that “whether a conscious person can openly and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious” (p. 1).
The provisions of the Criminal Code with regards to sexual consent and the case law were aimed to protect women against abuse by others. These provisions intend to protect and enhance the sexual autonomy of women. Other people should not make choices for them.
10. What was the final decision of the SCC, ie: did they rule in the favor of the appellant or respondent, order a new trial, uphold the decision of the court below them, did they allow the appeal or that the appeal should be dismissed. (If you look at the notation “Held:” which usually appears just before the SCC justices get into the case, you will see what the SCC decided in your case).
The Supreme Court restored the conviction of respondent to the case of sexual assault. This decision did not require the development of a new category of non-consent under s.273.1(2). It, however, came from the interpretation of the present categories in that section setting out the circumstances in which consent is justified.
Chief Justice McLachlin, the main proponent for the restoration of the conviction, established many of the same points on the interpretation of s.273.1 (p. 1). It established that the proper focus of s.273.1 was on the sexual activity being contended, which proposed that “the consent of the complainant must be certainly pinpointed to each and every sexual act. This negated the argument that broad advance consent is what Parliament had in mind” (p. 1).
Likewise, the main proponent found it handy to consider the Criminal Code provisions on mistaken belief in consent, even if this argument was not at issue in the case. Section 273.2 of the Criminal Code stipulates that:
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.
Citing s.273.2(b), McLachlin C.J. argued how an individual could take justifiable steps to affirm whether a person was consenting if that person was not conscious (at para. 42) (p. 1). It is a very defined principle that the complainant’s real consent precludes a finding of sexual assault (p. 1). There is nothing in the Criminal Code that states that the Parliament has considered or adopted a statutory exception to this principle which would vitiate consent to unconscious sexual activity.
The Supreme Court attested that a person cannot, while unconscious, consent or revoke consent. However, it does not really follow that consenting adults cannot, as a matter of law, willingly and consciously agree to engage in a sexual act or a sexual practice that invovles a “transitory unconsciousness” (p. 1). This is based on the ground that during the brief period of that consensually induced mental state, they will not be able to consciously consent to doing what they have consented prior before the act.
In the absence of any evidence that J.A.’s conduct went beyond the scope of the complainant’s consent, or caused her physical harm which would vitiate her consent at common law, there is no basis in the provisions of the Criminal Code for generalizing that the complainant’s consent in fact was not a legal consent in law (p. 1).
Work Cited:
Judgments of the Supreme Court of Canada. “Decision – Supreme Court Judgments, R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. 2011. Accessed on 25 September 2013 < http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/7942/index.do>.
