Supreme Court Decision

[Kip Powick]

I just find it incerdible that this case even went this far......... wow !!!!

Woman can’t consent to sex while unconscious, says Supreme Court

OTTAWA—The Supreme Court says an unconscious woman can't give consent to sex.

In a split 6-3 decision, the court today restored the sexual assault conviction of a man who penetrated his female partner with a sex toy in 2007.

The case involves a woman who was choked unconscious by her common-law spouse. When she awoke, she found herself bound and being penetrated.

The woman first told police she did not consent to the asphyxiation and subsequent sexual activity, but she later recanted.

Her evidence at trial was described by the judge as a “typical cross-examination of a recanting complainant in a domestic matter.”

The man was originally convicted at trial of sexual assault but that was overturned by the Ontario Court of Appeal.

Chief Justice Beverley McLachlin, writing for the majority, said a person must be conscious during sexual activity to give consent.

“Our task on this appeal is to determine whether the Criminal Code defines consent as requiring a conscious, operating mind throughout the sexual activity,” she wrote. “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.”

Justice Morris Fish, writing for the dissenters, said that the woman consented to the sexual activity leading up to her unconsciousness and the unconsciousness itself.

Fish wrote that the complainant, who can only be identified as K.D. because of a publication ban, “consented to her erotic asphyxiation” by her partner.

“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.”

The woman first complained to police two months after the incident when J.A. threatened to seek sole custody of their two-year-old child. She later recanted, Fish noted.

Fish said the provisions of the Criminal Code that deal with consent to sexual acts are designed 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 sexual relations of their choice,” Fish wrote.

“Put differently, they aim to safeguard and enhance the sexual autonomy of women and not make choices for them.”

The court did not address the issue whether asphyxiating someone to the point of unconsciousness constitutes causing bodily harm.

The law does not allow someone to consent to bodily harm.

[boestar]

So if she falls asleep in the middle of it, did she still consent?

[Kip Powick]

So if she falls asleep in the middle of it, did she still consent?

Never happened in my case but once she did lose her spot in the book she was reading....

[SkyBlazer]

The woman first complained to police two months after the incident when J.A. threatened to seek sole custody of their two-year-old child.

This was never really about the consent ...

I wonder how many tax dollars were spent coming up with this no brainer.

Ill have to go back and tell my parents that failed to include the "she must be conscious" part to the birds and the bee's speech they gave me oh so many years ago.

Only in Canada eh...

SB

[DEFCON]

The male part of the sexual equation, already reduced to the legal & natural status of a 'stage-prop', will soon be required to carry around a briefcase full of 'consent' forms designed to address all of the various sexual possibilities he might encounter. One will also need to keep someone available to 'witness' the document and an observer to ensure that all went according to the release.

Apparently the SCC concludes, women aren't capable of making informed responsible decisions and or agreeing to participate in acts on their own?

[J.O.]

I'm glad our supreme court has time to hear cases involving, shall we say, deviant sexual activities. I'm not condoning what the guy did, but she agreed to the choking part. I'm surprised she had the guts to go public about it.

[Fido]

The Supremes do not take upon themselves cases of frivolity, although in this particular case they had limited choice since the case was brought to them by the Attorney General under the provisions of "As of Right" meaning that they could not decide in advance that they were 'too busy'.

The Supremes also do not concern themselves with the right or wrongs of a particular case but rather whether or not the law was correctly interpreted.

As such the ruling of the SCC takes on a 'precedent' for future matters brought before any court in the land (or even in other countries with similiar constitutional systems), or, they signal to Parliment that the law needs to be either changed or cleaned-up.

When the SCC makes a judgement it is in the knowledge that their writings will be referenced in many other cases for many years to come.