Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.

This case concerned the interpretation of “consent” under the sexual assault provisions of the Criminal Code.  

LEAF intervened before the Supreme Court of Canada. 

Facts 

The complainant reported that she was sexually assaulted by her common law spouse. On the night in question, the accused strangled the complainant into unconsciousness. The complainant estimated that she was unconscious for approximately three minutes. When she awoke, she found herself bound and being anally penetrated with a dildo. The accused argued that the complainant consented “in advance” to the strangulation and the anal penetration that would take place while she was unconscious.  

The trial judge convicted J.A. of sexual assault. A majority of the Ontario Court of Appeal allowed J.A.’s appeal and set aside the conviction. The Crown appealed to the Supreme Court of Canada. 

Arguments 

LEAF argued that, by definition, there could be no consent to sexual activity when a woman wasunconscious and unable to say “no”. Accepting “advance consent” would re-introduce the discredited notion of “implied” consent into Canadian law. LEAF also situated the strangulation and unconscious penetration of the complainant in the context of domestic abuse and systemic violence against women. 

Outcome 

A majority of the Supreme Court held that a person could not give advance consent to acts committed while they were unconscious. As a result, they restored J.A.’s conviction. 

LEAF is grateful to Susan Chapman and Elizabeth Sheehy, counsel in this case, as well as Nadia Effendi, Ottawa agent for LEAF.

Download the factum here.  

Read the Supreme Court of Canada’s decision here. 

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].