Before I begin the substantive content of my column I want to provide a few disclaimers. First, this article is not about Jian Ghomeshi although the idea for the column came as a result of reading related news articles. Second, the content of this article is more explicit than I would normally include. I will be discussing a Supreme Court decision. I have tried my best to only disclose elements of a case that are critical to an explanation of that decision. The case can be found on the Lexum site under "decisions" and by searching R. v. JA 2011. I warn readers that the facts of the case are explicit.
With these two caveats, I want to use my column to follow up on an article in the Globe and Mail by Brenda Cossman entitled, "The Ghomeshi question: The law and consent." Cossman explains that the Supreme Court has provided a ruling on the conditions for consent in Canadian law. I thought that I would look specifically at the case in order to discuss the role of court and the state in the case of consent and sexual activity.
In 1967, the Globe and Mail published an editorial in which they lauded then Justice Minister Pierre Elliot Trudeau for "grappl[ing] with a huge and hoary issue when he outlined the reasoning behind the decision not to have a free vote on the divorce reform bill. Nothing less than the relationship between the sacred and the profane, the jurisdiction of Caesar and the jurisdiction of God." In other words, he opened the question about the role of the state in issues of morality. The editorialist also said: "...the state's responsibility should be to legislate rules for a well-ordered society. It has no right or duty to creep in the bedrooms of the nation." Trudeau was later heard to say: "There is no place for the state in the bedrooms of the nation." And yet, clearly there is, or at least there are times when the state thinks there should be.
In 2011 the Supreme Court upheld the conviction of a man charged and convicted of sexual assault. The circumstances of the case were that a couple were engaged in sexual activity when the woman consented to be asphyxiated (choked) until unconscious. During the time when she was unconscious he performed a particular sexual act on her. The evidence is unclear as to whether or not she had consented to this type of act in their previous sexual activity. After she became conscious again they engaged in consensual sexual intercourse. Two months later the woman reported her partner for the sexual act that had been performed on her while she was unconscious. The Court found, that within the bounds of law, the man had committed assault.
The majority of judges decided that the question they needed to answer 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."
They argued that: "Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question." Thus the law does not allow for a sexual act to be committed while someone in unconscious. "The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation..." Note my added emphasis here.
The dissenting judges, those who disagreed with the majority decision, argued that in a case where a person "willingly and consciously agree[s] to engage in a sexual practice involving transitory unconsciousness" that their prior agreement to sexual activity was not "rendered inoperative [in other words, ended] during the few minutes of her voluntary unconsciousness." The dissenting judges feared that this reading of the law could lead to possible untenable outcomes. Would a person be committing assault if they kissed their partner when they were sleeping?
In the end, the majority of judges decided that they could not interfere with Parliament's objective which is "... to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point." In this case, the judges seem to be making the case a "well-ordered society" might require the Parliament to "creep into the bedrooms of the nation."
