SCC justices Abella, Binnie and Rothstein denied the Crown leave to appeal in Her Majesty the Queen v. L.B. (Ont.) and Her Majesty the Queen v. Katrina Ann Effert (Alta.) (links are to Court of Appeal judgments on Canlii).
Since the SCC released J.A. today, allowing the appeal and restoring the conviction, with three judges dissenting (Binnie, LeBel and Fish JJ., and oh yes, Facebook comments see a pattern there), I’m posting a roundup (i’ll add more as they pop up) and reposting my original post.
In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary. (Majority at para 65 per McLachlin CJC)
As that quote indicates, the majority relies heavily on the consent rules in the CCC to find that Parliament intended to ensure that people could, at the time of the touching or the act, be able to withdraw consent. They meet the objections to the rule with a bit of a shrug – they admit it could cause situations which seem, on their face, ridiculous (no sleeping kisses! no wakeup fellatio!), but they can’t do much about that – we need to take that up with parliament or, (!) involve the Charter.
Here’s the Canadian Press, here’s the Globe, here’s a post on Slaw that I can’t say I really enjoyed (should’ve known from the title, “Crimes of (Unconscious) Passion” that it wasn’t going to appeal to me, right?) but is worth a read because I think it represents a big zone of opinion, and here is LEAF’s press release (my views haven’t changed since the CA, see far far below – I feel uncomfortably sure that the majority had the best decision):
Leaf Media Release May 27, 2011:
“The Court reaffirmed the last 20 years of equality-driven developments in the law of sexual assault” explains LEAF Legal Director, Joanna Birenbaum. “The decision confirmed what is already clear in the Criminal Code and what is, or should be, common sense. When a woman is unconscious she is not sexually available. Any sexual act perpetrated on an unconscious woman, who is unable to say “yes” or “no”, is assault. This is a simple proposition. And it is uncontroversial.”
The facts of the case involve an abusive spouse who strangled the complainant into unconsciousness and, while she was unconscious, bound her and penetrated her anally with a dildo, at which point the complainant came-to. The accused argued that the complainant had consented to the strangulation and had consented “in advance” to the sexual acts performed on her body while unconscious. The trial judge convicted the accused of, among other charges, sexual assault. The Ontario Court of Appeal overturned the conviction on the basis that the complainant had consented in advance to the sexual acts performed on her while unconscious.
The Supreme Court of Canada restored the conviction and held that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” and that “the definition of consent…requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement.”
“This decision offers important protection for women who are most vulnerable to sexual assault” explains LEAF counsel Elizabeth Sheehy. “Women who are unconscious because of drugs or alcohol, whether taken voluntarily or involuntarily, or because of disability, are sexually assaulted at shockingly high rates, often with impunity for the offenders. This decision ensures that predatory men cannot rape unconscious women and then say “well, she said it was OK before becoming unconscious.”
Birenbaum adds that “the decision also affirms the law, taken for granted by most if not all Canadians, that a wife can say “no” to sex with her husband. Consent cannot be assumed from the spousal relationship. The fact that a spouse, or any woman, said “yes” at some point in the past, is not a perpetual consent to sex. Sexual partners have an obligation to ensure consent on an ongoing basis. Women must always have the right to withdraw consent at any moment. Withdrawal of consent is simply not possible when a woman is unconscious.”
LEAF’s intervener factum can be found at
Unconscious women enjoy no sexual pleasure and exercise no autonomy.
Joanna Birenbaum, LEAF’s Litigation Director
I almost completely forgot that the hearing in J.A. was today. Thanks to one of my students for the nudge. Here’s a round up of commentary etc on this case, which asks whether “advanced consent” to sexual activity is possible under Canadian Criminal Law. The majority of the Ontario Court of Appeal said yes, it is possible, and cited personal autonomy as a value served by the rule. The dissenting judge (LaForme J.A.) held that autonomy can’t be served by a rule which creates a situation in which consent cannot be revoked. He would have held that there was no legal consent to sexual activity while unconscious. LEAF, intervening, and the Crown (factum here), generally argue that there is no way to consent to an activity if during the activity it wouldn’t be possible (due to unconsciousness) to revoke that consent. The appellant, J.A., (factum here) argues that the Court of Appeal majority got it right. They raise some hypotheticals designed to make some people think twice (there were also a variety of hypos about surgery):
40. If consent to any form of sexual touching while unconscious is invalidated, it would constitute a sexual assault to rouse one’s intimate long-term partner with sexual touching, or even a kiss, even if the partner enthusiastically agreed to it. A person might consent to
being awakened with fellatio, but his partner would be labelled a violent criminal sex offender for fulfilling his wish. A person whose partner falls asleep post-coital in a sexual position commits a crime since, on the Appellant’s argument, any loss of consciousness is a
revocation of consent to be touched.
But of course, these delightful examples will, to many people, bear little resemblance to the allegations in this case: (from the judgment of the Ontario Court of Appeal)
 Following a trial before Nicholas J., the appellant was acquitted of aggravated assault and of attempting to render the complainant unconscious to enable him to sexually assault her but convicted of sexual assault and breach of probation.
 The complainant on all of the charges was the appellant‟s intimate partner and the mother of the couple‟s son. She testified that she consented to the appellant choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She explained that she complained to the police about the incident about a month and a half after it happened as a result of an argument with the appellant.
The Crown took the position that she couldn’t, in law, consent to these acts while she was unconscious. The trial judge agreed and also found that she in fact didn’t specifically offer consent to the sexual acts which occurred while she was unconscious (although the trial judge agreed she consented to being rendered unconscious).
Here is a link to LEAF’s Factum, and here’s at bit from the Post (surprise), I think they had the best – most thorough – newspaper article i read on the case (the Vancouver Sun story was amongst the worst – compare them for “fun”).
The defendant already had more than two-dozen prior criminal convictions, including two for abusing K.D. On one occasion, he knocked the wind out of her with a punch to the ribs. Another time he kicked in the front door of their residence and called her a “whore, bitch, skank” while narrowly missing her head with a wine bottle.
I find this one trickier than I thought I would, because I do think we ought to be able to consent to a wide variety of things, even things which will occur whilst we’re unconscious. It’s easy to get all tied up in knots, so to speak, about the difference between what happened to K.D. and the “sleeping kiss” scenario – but the “average” person’s professed distaste for certain practices isn’t what this is supposed to be about, right? The thing that resolves any dilemma is that I’m not quite naive enough to think that this is about the sleeping kiss, nor am I convinced that this is “like” surgery. It’s about sexual assault, and the big lurking problem here (there are little ones too, but the big one) is alcohol. Being choked into unconsciousness might be relatively outrè. But drinking to the point of passing out is not. It’s practically common. And the extent to which the Ontario Court of Appeal’s judgment makes that situation even more precarious for women than it was before, by opening the door to a claim of “advance consent,” is a real concern.
LEAF’s factum does a much better job that I have of laying out these arguments. I suppose I’m just making the point that where I might go on strict logic and where I think the law should actually go to avoid “unintended consequences” I want are not on strictly parallel tracks here, and it’s an odd feeling. I’m over it but if you’re still worried, try Tracy Clark-Flory’s arguments in Salon:
If the court rules in the negative, some say it will hurt couples’ freedom to experiment with kinky sex. The imagined scenario is one where a woman says that she wants her partner to choke her until she passes out and then have sex with her. But the BDSM community subscribes to the mantra “safe, sane, and consensual.” Erotic asphyxiation, especially to the point where someone passes out for an extended period, is not safe; it’s incredibly dangerous and potentially deadly. Everything in the S&M world — from safe words to “slave contracts” — are designed to avoid any uncertainty about consent. In this particular case, the accuser’s argument isn’t that she consented to being choked and sodomized while unconscious; the argument is that she consented to the former but not the latter. You could just as easily speculate that a conviction in this case would be a reaffirmation of the values of the BDSM community.
The SCC’s webcast isn’t showing up for this hearing, and I’d really like to see what happened there. And apparently no one tweets from SCC hearings. This makes me question the utility of Twitter,because if I lived in Ottawa, surely I would try that. On second thought, there is probably some kind of rule about it. There’s a bit in this Globe article (but they don’t say which judge raised the “sleeping kiss” scenario):
One judge asked if it could be assault if a spouse kissed a sleeping partner without consent.Crown lawyer Christine Bartlett-Hughes acknowledged there must be some discretion applied as to whether a sexual act constitutes harm.
But Justice Rosalie Abella questioned the contextual approach.
“If the paradigm has been that consent includes the right to withdraw consent and that you cannot withdraw consent if you don’t know what is taking place because you are unconscious or asleep, that’s not a question of harm,” said Ms. Abella.
“That’s a question of being aware enough that you can continue to consent or not…”
But an unconscious person loses the ability to change their mind, said Ms. Bartlett-Hughes, and therefore loses the ability to consent.
“At that point, that person don’t have knowledge of how the activity is occurring,” she said.
J.A.’s lawyers argued that the couple had clear parameters established ahead of time with regards to their intimate relations and rules about how the woman would indicate her partner should stop.
“Surely, she must have contemplated that while she was unconscious she would not be able to revoke her consent,” said Howard Krongold.
Ms. Abella reflected that the current “no means no” definition of consent to sexual activity is about state of awareness.
“The whole construct is the consent continuing throughout the sexual activity,” she said.
The Attorney General of Canada and the Women’s Legal Education and Action Fund also appeared before the court to argue that advanced consent must not be considered a legal defence in sexual assault cases.
“The law must apply for the protection individuals who are there most vulnerable and here we are talking about people who are their most vulnerable,” said James Martin, a lawyer with the Attorney General’s office.
Here’s LEAF’s press release, prior to the hearing. In general, I agree with this picture of the case.
November 5, 2010, Toronto -On Monday, November 8, 2010 LEAF will appear before the Supreme Court of Canada in the case of R. v. J.A. to argue that the Court should not introduce a novel concept of “advance” consent to sexual relations into Canadian law.
“The accused is asking the Supreme Court to turn the clock back twenty years” says LEAF Legal Director Joanna Birenbaum. “A vital part of the meaning of consent is the right to say “no” at any point. The accused is asking the Court to change the law so that a woman’s earlier “yes” continues, even after she becomes unconscious, extremely intoxicated, or otherwise unable to say “no”. Any change in law to recognize “advance” consent would be dangerous and regressive.”
The case involves a woman who reported that she was sexually assaulted by her common-law spouse J.A. On the night in question, the accused strangled the complainant into unconsciousness. The complainant estimates that she was unconscious for approximately three minutes. When she awoke, she found herself bound and being anally penetrated with a dildo. The accused says that the complainant consented “in advance” to the strangulation and the anal penetration that would take place while she was unconscious. The complainant first reported to the police that she did not consent to the sexual activity. Later, the complainant recanted. Her evidence at trial was described by the judge as a “typical cross-examination of a recanting complainant in a domestic matter.”
“This case is not about ‘S & M’ nor is it about women’s sexual autonomy or liberty. Unconscious women enjoy no sexual pleasure and exercise no autonomy. “Advance” consent makes a mockery of the legal and social understanding of consent” says Birenbaum. “Instead, this case raises serious concerns about wife assault. A doctrine of “advance” consent would offer dangerous abusers who strangle their partners a defence to otherwise potentially deadly criminal activity. More generally, it will effectively revive the marital rape exemption. The ongoing consent of wives or intimate partners will be assumed or implied from the nature of the relationship.”
LEAF’s intervener factum argues that any recognition of “advance” consent in law will have significant and serious implications for the lives and safety of women, particularly women who are already more likely to be targeted for sexual assault, such as intoxicated women, women with disabilities and Aboriginal women. “The burden will shift to women to prove that they never gave “advance” consent”, says Birenbaum. “This is totally unacceptable and in many instances will be a near-impossible threshold. It is the man’s responsibility to ensure that his partner is actively consenting at the time of the sexual activity.”
This is a new semi-regular IFLS feature which will profile Canadian legal feminists. I got the idea when I was reading the Supreme Court of Canada’s latest section 15 (constitutional equality) decision. Daphne’s quite critical work is cited twice! How did she do it? I wanted to know. So I sent her a set of questions (developed with my colleague Kate Sutherland) and here’s the result! Enjoy. I think we can learn a lot by learning some of what’s behind the scholarship, how it happens, and how we connect our scholarship with other aspects of our feminist identities. I hope these features help us get to know each other, even though we’re separated by some pretty fearsome distances.
In this installment,Daphne tells us who we should be reading, what she should be reading, and lets us in on what co authoring with Diana Majury is like. Next up, U Vic’s Maneesha Deckha.
What’s on your desk?
On my desk [at home] as I answer your questions (in no particular order and suggesting no order at all): A cup of chocolate-mint tea, photos of my kids, my iPhone binging away with texts and emails (not exactly a distraction-free zone!), a pile of clean soccer clothes to put back in the soccer backpack, a birthday card I am overdue at writing (just like all of my other overdue deadlines!), a football that needs to be pumped up for the ten-year-old-son, a box of chocolates for I allow myself one for every two straight hours I sit at my desk, two journal articles I mean to read someday, a package of gum I confiscated from my seven-year-old’s backpack, and a posted note affixed to my monitor that says (in faded ink): “NO EMAILING BEFORE NOON” (ignored from day one).
[i asked for details and Daphne said the articles were Reva Siegel and Neil Siegel, Pregnancy and Sex-Role Stereotyping, From Struck to Carhart,70 OHIO ST. L.J. 1095 (2009) and Shannon Sampert, “Let Me Tell You a Story: English- Canadian Newspapers and Sexual Assault Myths, (2010) 22 CJWL, vol. 2, 301. “I actually have the entire volume of the CJWL sitting on my desk but the Sampert piece is the last one I have to read! I loved that conference in honour of Jane Doe— it was such a fantastic positive space”]
Fiction book you read in last 12 months that you recommend?
I loved “The Guernsey Literary and Potato Peel Pie Society” by Mary Ann Shaffer.
Tell us about the birth and development of the ideas in the articles that the SCC cited:
Time to Regroup” was a follow-up piece to my first published article on section 15, which itself was part of a tribute to Justice Claire L’Heureux-Dube. In that first article, I had described her approach to section 15 and her emphasis on groups and de-centering of a grounds-based analysis. As I wrote that piece, I found I had more to say and so “Time to Regroup” was born. I was particularly intrigued by the idea that a focus on groups could highlight the unique experience of those historically disadvantaged in our society. Grounds, as described in section 15 and by the SCC, are “neutral” in content (with the exception of the ground of “disability”). I liked the idea that groups were more fluid, multi-dimensional and welcoming to an intersectionality analysis.
The piece Diana and I co-wrote was a post-Hodge contemplation on the rising role of comparator groups and the corresponding demise of substantive equality in the Supreme Court’s section 15 jurisprudence. It was born out of a meeting organized by LEAF. Feminist academics and activists from across the country met in Ottawa for a workshop on how to move forward in a post-Nancy Law era of equality rights. The role of comparator groups was one of the issues discussed at that workshop and Diana and I planned a three part article series (shoot for the stars!). “Critical Comparisons” was the first part, outlining the problems with the Hodge approach to comparator groups. We were concerned at how narrow and formulaic the Court’s approach to comparison was becoming, as evidenced in particular by Hodge and Auton. Part II of our planned trilogy was supposed to be a larger “think” piece on the contextual role of comparison in equality analysis. We wanted to take one of the concluding paragraphs of “Critical Comparisons”, wherein we name-dropped some alternate approaches, and expand that into a more contextual and broader discussion on the role of comparison. We then planned a third piece on what the Court could do differently, specifically within a section 15 rubric, but considering our more theoretical musings from part II. And so… as you can see, we landed firmly on earth in our “shoot for the stars” goal of three comparison-centred articles! We got seriously mired in part II, reading philosophy, sociology and comparative legal analyses. In the end, we couldn’t work ourselves out of the “conundrum of comparison” (our working title for part II). When I sat down to work on the factum for LEAF’s intervention in the Withler case, I really bemoaned our failure to write the theoretical analysis. I could have used it as we tried to craft a post-comparator-group option for the Supreme Court.
How do you describe your feminism?
I think my politics align with the second wave feminist spirit, but my feminism is not just a political statement. Feminism infuses my career, the friendships I hold most dear, my relationship, my parenting… and so it is difficult to describe in the abstract. I am grateful that my job allows me space to write and teach about feminism, so that the constant, underlying foundation of my life is made manifest in an active
Name the course you took in law school that you think about most now and why.
I always joke with my students that I can lay honest claim to those stereotypical complaints: “In my day, we walked to school. Uphill. Both ways.” : ) I went to law school at the University of Manitoba at a time when both first and second year were a prescribed set of courses. As a result I took classes like tax and business organizations, that I might never have taken otherwise, and it was a healthy challenge! Perhaps not surprisingly though, the course that most influenced my career was “Gender and the Law” with Karen Busby. It was my first exposure to an out feminist teaching about feminist issues. I realized academia could be the place to do really interesting work.
I love teaching. It is my favourite part of the job. I love students who are enthusiastic and passionate about law school. I love it when they dive into the whole experience and really challenge themselves by taking courses outside their comfort zones. On the one hand, I really applaud the students who come in with a firm sense of direction. But on the other hand, I celebrate those who find their heart in law school and head off on a new adventure, different from the life they had charted for themselves. Law school can be just such a turning point for so many students, and I love being part of that journey.
[Image is of three of Daphne’s most difficult students – her kids]
Qualities you appreciate most in your colleagues?
I appreciate the dedication and innovative spirit that so many of my colleagues bring to teaching and other faculty projects. So many of my colleagues are making a huge public impact with their work in technology law, environmental law, international law, and of course the feminist-equality rights advocacy that our faculty is known for.
Name one Canadian academic whose work inspires you and who could be more widely known/read/loved.
Only one?! I am a big fan of Maneesha Deckha’s work on animal rights issues and feminism.
How do you think your professional roles – scholar, lawyer, activist, feminist, teacher – relate to each other? Do they ever all come together? Have I left some out? Are there ways in which they don’t fit together very comfortably?
I feel pretty comfortable about the way all of those roles have combined in my professional life. It is my work on the legal committee of LEAF that has really given fruition to my lawyer role, and I love that I can bring an academic eye to the litigation LEAF engages in. My work on the Withler intervention was one of the most rewarding professional activities of my career (and it allowed me to simultaneously add and then check “appearing before the SCC” off my bucket list—an aspiration that hadn’t even made it on, I considered it so unlikely!) Our faculty at uOttawa has such a strong feminist cohort, so it is easy to bring my feminism into teaching and activist work within the community. That same feminist community also enabled my scholarly work by ensuring I both attended and presented at feminist legal conferences early in my career. From the beginning of my appointment, I had so many feminist mentors in my own faculty, giving me the strength in numbers to feel secure in teaching and writing with a strong feminist focus.
The setting is important and so you need to picture it: a beautifully warm and sunny backroom with a roaring woodstove in the winter, Diana’s cuddly dog Ella (now sadly passed away) hogging one end of the couch, two pairs of feet propped up on the coffee table, and mugs of fabulous coffee at hand with sweet treats (my only contribution) for I can’t work without sugar (see the list of what is on my desk). We usually tried to stick to a “gossip for an hour and then get right to work” rule, but with mixed success. We talk our arguments out for hours together, and then divide up the writing. We each write portions of the piece, but usually not entire sections on our own. I may take the first half of an argument, for example, with Diana rounding it out. Our articles aren’t severable into distinct “hers and mine” parts, but rather are totally integrated. We don’t sit down and write together, but by the time the piece is done, it is truly a joint writing experience. We go over the final draft together and work on the nuances of language.
[the image is of the cake Daphne made for Diana, in honour of Diana’s hon doc from the Law Society of Upper Canada. Diana spoke to newly called lawyers using the Wizard of Oz as her theme]
Did you imagine when you were writing them that you might be writing for an audience of judges? The title of the co authored piece does suggest that you didn’t!
We did not think the Court would ever cite our piece! As a former clerk, it behooves me to say that I assumed judges might read our work. I did not think however, that it would be cited. Our co-authored piece “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” does draw its title right from the language that Justice Binnie uses in Hodge to describe the conundrum of comparator groups, so we felt a little less provocative in using the word “doom” then we might otherwise have felt. I was really glad to see the Supreme Court cite so many great feminist authors in its Kapp decision, even if it didn’t use that opportunity to flesh out the arguments (or more specifically the critique) that we were offering.
Which section 15 case are you looking forward to and/or What’s your fantasy section 15 case – the case you think would be winnable, important, fabulous, but no one’s bringing it?
I am so disheartened by the Withler decision that I can’t say I feel optimistic either about section 15 or about fantasy cases. A case I liked, that I thought was bravely written, was the Falkiner decision at the Ontario Court of Appeal. I appreciated the recognition that “receipt of social assistance” could be an analogous ground. I think poverty challenges are unwinnable at the Supreme Court of Canada (think Gosselin!) but they are so important. Welfare, homelessness, mental health, child poverty, education rights… all of these issues and more haunt the true realization of section 15’s potential.
In case you aren’t a twitter person, I sometimes put news up on our twitter feed at @osgoodeifls – and I often retweet news from others – here’s a recent roundup. We also tweet all our posts, if you prefer to get them that way.
Hope you had a happy st. patrick’s day!
The decision in LB came down today, clarifying some issues around infanticide. LEAF intervened in this case, and certainly the decision is the one they wanted.
Judges and juries weighing murder charges against a mother accused of killing her infant will still be allowed to apply the lesser charge of infanticide, Ontario’s top court has ruled.(from CBC link below)
“In the past few years, we have seen what appears to be an emerging trend of the Crown charging women who have killed their newly-born children with murder instead of infanticide. The result is that these women face life imprisonment,” says LEAF Legal Director Joanna Birenbaum. “This is a significant concern to LEAF since the offence of infanticide, which carries a maximum sentence of 5 years imprisonment, is intended to account for the complex and gendered social, economic, psychological and medical context in which the offence occurs.”
And here are the earlier posts on this topic. Sorry this one got on the blog a bit late today.