R. v. A. (J.): Confusing Unconsciousness with Autonomy

Abstract

The decision of the Ontario Court of Appeal in R. v. A. (J.) raises the important issue of whether a woman can give prior consent to sexual activity that takes place while she is unconscious and has significant implications for our understanding of consent generally. The decision of the majority, which endorses the possibility of valid advance consent, poses serious risks for the safety and bodily integrity of women and is inconsistent with the definition of non-consent developed by Canadian courts in the past two decades.

The authors review several other cases and concludes that Canadian courts have rejected the notion that passivity can be equated with consent and unconsciousness is the ultimate passivity. They conclude it is vitally important to women's sexual equality that they never be deemed to be consenting to sexual activity in the absence of current capacity to consent.

Keywords: Canada, Criminal law, Sexual assault, Defences, Consent