Tag Archives: scc

NS: Veiled Rejection [a very cursory roundup]

NS Finally came out today, as you probably know. The Supreme Court cases considered how law should deal with the claim of a niqab (don’t know what that is? check here)  wearing woman who was to testify as a complainant in a sexual assault trial that wearing the niqab was a religious right – when the accused claimed the wearing of the veil contravened his fair trial rights.

Here is a little roundup.
First, the decision (my nutshell: N.S. Majority: Balancing. LeBel & Rothstein: Niqab is incompatible w fair trial. Abella dissents: No need to remove. )

Second, commentary. There’s not much deep commentary today, but there are quick thoughts and helpful summaries.

My colleague Ben Berger on CTV notes Abella’s foregrounding of #gendered #violence.

My colleage Faisal Bhabha, who appeared for one of the interveners who supported N.S., here in the Globe and Mail.

The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha…

Poli Sci Prof Emmett Macfarlane in Macleans here.

Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane…

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Ruthann Robson of CUNY law putting Canadians to shame with her quick off the mark blog post here.

“From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court’s opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.”

There is much quick commentary available – especially on Twitter – all very canadian and clean.

From the Abella reasons:

[94]                          This has the effect of forcing a witness to choose between her religious beliefs and her ability to participate in the justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (2009), 115, at p. 128.  As a result, as the majority notes, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial.  It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence.  To those affected, this is like hanging a sign over the courtroom door saying “Religious minorities not welcome”.

[95]                          The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault.  As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused” (para. 72): see also R. v. O’Connor, [1995] 4 S.C.R. 411, per McLachlin J., at para. 193.  Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself.

those thoughts are also behind this tweet from @blberger

@blberger LeBel J (concur) in NS: no niqab b/c it “removes the witness” from acts of communication. Worry is literal “removal” of complainants, no?

Second last word

last word:

Your links and thoughts welcome in the comments or on FB

Clean up your room! Maternal Authority and Responsibility at Law (Rochon c. R.)

Follow up from my post on cases coming to the SCC –  Rochon c. R., 2011 QCCA 2012 (CanLII), an as of right appeal from the QCCA (no, Wagner was not on the bench) was heard today.

This is the case that reminded me of Regina Austin, 14 Yale J.L. & Feminism 273 (2002)  Step on a Crack, Break Your Mother’s Back: Poor Moms, Myths of Authority, and Drug-Related Evictions from Public Housing – with clear contextual differences. But Austin’s discussion of “maternal authority” is interesting in this context.  My colleague Professor Shelley Gavigan then pointed me to R. v. CHRISTIE [1978] N.B.J. No. 68 New Brunswick Supreme Court Appeal Division – I can’t find it in open source so I will just paste the whole thing in at the end of this post.  Suffice it to say that the mother in that one is let off the possession charge.  Today the appeal in Rochon was dismissed (it was a Crown appeal) with reasons to follow and Cromwell J dissenting (so I hear).

The CAQ case linked above is in French, so here’s the summary available on the SCC website (“Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.”):

…. Whether complicity by omission under s. 21(1)(b) of Criminal Code requires existence of legal duty to act and whether failure to act by person who omits to exercise authority over another person or property can constitute actus reus of that offence.

Ms. Rochon entrusted her property to her son in her absence. When she returned to her property in the summer, she found that marijuana was being cultivated on her land. She asked her son twice to remove the crop, but she did not want to report him to the authorities. The trier of fact concluded from the evidence that Ms. Rochon had known of the situation and had therefore been obliged to call the police and report what her son was doing.

via Supreme Court of Canada – SCC Case Information – Summary.


[1978] N.B.J. No. 68
21 N.B.R.(2d) 261
37 A.P.R. 261*
New Brunswick Supreme Court
Appeal Division
Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
February 17, 1978
(8 pages) (20 paras.)

Beaver v. R., [1957] S.C.R. 531, appld. [para. 13].
R. v. Hess (No. 1), 94 C.C.C. 48, appld. [para. 13].
R. v. Ashwell (1885), 16 Q.B.D. 190, ref’d to. [para. 13].
R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.), ref’d to. [para. 13].


Criminal Code, R.S.C. 1970, c. C-34, s. 3(4).
Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(2) [para. 1].


BRIAN MALONE, for the Crown
WILLIAM CONNELL, for the accused

This case was heard at Fredericton, N.B., before HUGHES, C.J.N.B., LIMERICK and RYAN, JJ.A., of the New Brunswick Supreme Court, Appeal Division.

On February 17, 1978, HUGHES, C.J.N.B., delivered the following judgment for the Appeal Division:

1     HUGHES, C.J.N.B.:– This is an appeal by counsel acting on the instructions of the Attorney General of Canada against the judgment of His Honour Judge Abbis delivered September 15, 1977, acquitting the respondent on a charge that on or about [*page262] July 8, 1977, at the City of Fredericton she did unlawfully have in her possession a narcotic, to wit: Cannabis (marijuana) for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act.

2     As grounds of appeal counsel alleged that the learned trial Judge erred:

  • (a)
    in failing to convict the respondent of possession of the narcotic on all the evidence and
  • (b)
    in not acting judicially in applying the test of proof “beyond a reasonable doubt”.

3     The facts as set out in the appellant’s factum were agreed to with certain minor exceptions and are substantially as follows. At trial counsel for the respondent made the following formal admissions:

“That six ounces of marijuana were found in the trunk, the closed trunk of a motor vehicle operated by the accused at the time and place alleged in the indictment. We are prepared to admit also service of notices of analysis, certificates of analysis, the service of the certificates of analysis, but we do not admit that there was possession in the terms of the Narcotic Control Act.”

4     The following exhibits were received in evidence: Exhibits C1 to C4 – photographs of motor vehicle driven by the accused; Exhibits C5 to C10 – samples of marijuana taken from bags found in the motor vehicle trunk with certificates of analysis attached; Exhibit C11 – money found in the trunk of the motor vehicle; Exhibit C12 – six bags of marijuana found in the trunk of the motor vehicle and Exhibit C13 – transcript of the preliminary inquiry.

5     The evidence given by the Crown witnesses at the preliminary inquiry was to the following effect:

“Corporal Donald Hanscom of the Fredericton City Police Department investigated an accident at the corner of Westmorland and Aberdeen Streets in the City of Fredericton at approximately 10:30 p.m. on July 8, 1977. The accused, Norma Jean Christie, was pinned in a small car behind the steering wheel and was the only occupant thereof. The trunk appeared to be down and closed and the rear of the car was undamaged. The front was badly [*page263] damaged from its collision with another car and with the verandah of a house against which it had come to rest. It took twenty minutes to release the accused and she was taken to the Dr. Everett Chalmers Hospital. This witness pushed the trunk button and it opened without a key as he was looking for a tire jack to change a tire on the car to allow it to be moved by a wrecker. When he examined the trunk’s contents he noticed money wrapped in brown paper lodged behind an electrical cable clipped onto the side of the trunk wall. The money was in two lots. One lot wrapped in brown paper contained $ 50.00 in cash and a cheque payable to the accused for $ 25.00, the other contained eleven 20 dollar bills and one 10 dollar bill for a total of $ 230.00. The witness found six bags of marijuana in a brown paper bag about four inches from the money. It was partially covered by one of the three tires in the trunk. The drugs and money were delivered by the witness to Constable Mark Fleming of the R.C.M.P. at approximately 11:20 p.m.

Constable Basil Hobbs, a law student and summer constable with the City Police Force testified he and Constable Vickers answered an accident call and arrived at 10:13 p.m. at the intersection of Westmorland and Aberdeen Streets. He accompanied the accused to the hospital and soon thereafter arrested her and warned her with the standard police precautionary warning.

Constable Mark Fleming, a member of the R.C.M.P. Drug Section, received the exhibits from Corporal Hanscom on the night of July 8 and later arranged for their analysis which proved to be Cannabis (marijuana).

The Crown closed its case against the accused to prove possession following the procedure of section 8 of the Act.”

6     The accused then gave evidence before the trial Judge. She stated she was 39 years of age and lived at the time of the alleged offence on Oak Avenue which is on the north side of the river within the City of Fredericton. She was employed by Central Mortgage and Housing Corporation and was living separate from her husband who lived in Bathurst. A 15 year old daughter was living with her and another daughter, 16, was living with her husband. The accused testified that on the weekend of July 2nd to 4th she had visited Bathurst with her younger daughter, that her car was used by her older daughter [*page264] that weekend in taking driving instructions. She said it was her practice to leave the keys in her car.

7     She said on July 8 she loaned the car to Allison Brewer, a daughter of her friend, Jacqueline Webster, who was hospitalized at the time. She had, in fact, visited Jacqueline Webster early that evening and Mrs. Webster had given her the $ 25.00 cheque which she had received from a friend of the accused from Bathurst. The accused stated that on the evening of July 8 she intended to join friends for a swim at the Diplomat Motel in Fredericton and that upon arriving at the motel she put her money and cheque in a brown paper bag containing a novel in the trunk of the car to ensure its safety. In the process of doing so she noticed another brown bag in the trunk. As soon as she realized it contained marijuana, she slammed the trunk closed and entered the motel and stated she desired to obtain counsel from her friends as she feared her children were involved with drugs. Her friends did not arrive at the motel as she had expected and she left and drove to her home on Oak Avenue for the purpose of contacting her children or other friends for counsel, but without success. She stated she then drove around the city looking for some of her friends – on Charlotte Street, at the Press Club on St. John Street and thence along Westmorland Street to where the accident occurred. In the process she had stopped for gas at the Waterloo Esso Service Station.

8     The accused estimated that from the time she discovered the drugs in the trunk of her car until the accident approximately one hour had elapsed. The owner of the drugs was never found. The accused alleged that she was in a state of panic and feared drug involvement by her children as an explanation for her conduct.

9     On cross-examination she admitted she was the registered owner and driver of a motor vehicle which was involved in the accident; that at the time of the accident she had no real reason to suspect her daughter’s involvement with drugs other than normal parental worries about teenagers; that she did not think about calling the police when she discovered the drugs in her car; that at one time she was a free lance writer in Bathurst and knew something about the court system; that the trunk of her car locked automatically when she slammed it closed following the finding of the drugs; that she had tried marijuana herself 5 years previously; that she gave no thought of consulting legal counsel for any help agency such as Chimo when she was at the Diplomat Motel; that she had never found narcotics in her car before; and that the [*page265] owner of the drugs is unknown.

10     Jacqueline Webster corroborated the accused regarding the $ 25.00 cheque found in the trunk of the accused’s car.

11     No evidence was given by Sharon Rolfe, the alleged maker of the $ 25.00 cheque; Allison Brewer who borrowed the car on the day of the alleged offence; the accused’s daughter who used the car the previous weekend; or friends of the accused who were supposed to meet her at the Diplomat Motel.

12     Counsel for the Attorney General called Constable Fleming in rebuttal. He stated that on the early morning of July 9 he had occasion to visit the hospital where the accused was being treated for her injuries and when she was ready to leave he took her to the police car and with Constable Hobbs drove her to the Police Station where he gave her a warning. He said that while in the car the accused stated that she was going to a party on Westmorland Street at the time the accident occurred. This evidence was introduced presumably to rebut a statement made by the accused that she was unable to remember on her cross-examination any statement to Constable Fleming that she had been on her way to a party on Westmorland Street when the accident occurred and had hidden her money to avoid possible theft.

13     The learned trial Judge adjourned the hearing for 2 days when he delivered an oral judgment in which he reviewed certain parts of the evidence stating he found the accused knew the marijuana in her car was Cannabis, that she could have destroyed the substance but that she simply neglected to do anything noting she stated that she panicked and did not know what to do. He referred to Beaver v. R., [1957] S.C.R. 531, in which the judgment in R. v. Hess (No. 1), 94 C.C.C. 48, was approved, R. v. Ashwell (1885), 16 Q.B.D. 190, and R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.), where the Court held the accused should have been acquitted because of the lack of evidence of control which is an essential ingredient of possession. The learned trial Judge concluded:

“In sum, I do not think that the defendant consented to the possession of the drug, and that her lack of consent applies to “personal possession” in the Criminal Code, Section 3(4)(a), as well as to the other aspects of possessions.”

14     He then asked himself the question: Did the defendant [*page266] have a duty to report the presence of the drug to the police? And he answered that he could find no remaining trace of a duty of a general nature to report known crimes in the criminal law. In concluding his judgment he said:

“I, therefore, have come to the conclusion and I do so, gentlemen, reluctantly but I have to dismiss the case against Norma Jean Christie. My feeling what took place on that day, what happened, are my own but I have to go by the evidence and I have to give the reasonable doubt to the accused and as I said a few moments ago, I do so reluctantly. Therefore, the case against the accused is dismissed.”

15     On this appeal counsel for the Attorney General contended the learned trial Judge erred “by failing to convict the respondent of ‘possession'” as that term is defined by the Criminal Code. He also contended the learned trial Judge erred in failing to judicially apply the test of reasonable doubt.

16     In my opinion there was ample evidence upon which the learned trial Judge could have convicted the accused of possession of a narcotic, but he took a view of the facts which led him to the opposite conclusion holding there was reasonable doubt as to the guilt of the accused. To entitle this Court to reverse that finding we would have to conclude that the evidence which the accused gave at trial is conclusive as to her guilt of possession of a narcotic. In Rex v. Hess (No. 1) O’Halloran, J.A., said at p. 51:

“It is not easy to find in the decisions any clear cut statement of what constitutes possession under all circumstances without exception. It may be extremely difficult to formulate any such description or definition which is universally embracing. But in my view the elements of possession to which I have referred are implicit in the statute as well as in the leading decisions which have had occasion to examine any of the many aspects of the subject. I do not find that the precise point in the form presented by this case has arisen in a leading decision. If knowledge of what the thing is were not an essential element, then we would have the ridiculous result that the children who found the parcel in the first place and brought it home to the mother, would by that act alone be automatically guilty of possession under s. 4(1)(d), and be compulsorily subject to a minimum of 6 months’ imprisonment [*page267] with a substantial fine. Even with knowledge of what the thing is, if some act of control (outside public duty) is not essential, then we would have the equally ridiculous result that the little girl’s mother who received the parcel of drugs and telephoned the police, would be automatically guilty of possession under s. 4 (1)(d) and compulsorily subject to imprisonment and a substantial fine.

I cannot satisfy myself that Parliament intended “possession” in s. 4 to be interpreted in a way to produce the foregoing absurd results, by eliminating the elements of knowledge and some act of control (outside public duty), and thus making manual handling simpliciter a crime.”

17     After examining the evidence in great detail O’Halloran, J.A., commented at p. 54,5:

“What Hess would have done with the drugs once he knew they were drugs was left in the future. The accused must commit the crime before he can be convicted of committing it.

For the foregoing reasons I must conclude no objective facts were presented in evidence from which it may be legitimately inferred that Hess had knowledge of what the parcel contained, or that after he had opened it and found what it was, he exercised any act of control over it. He was given no opportunity to do so. But even if it could be said that there is any foundation for such inferences, they are not strong enough in my opinion for reasons stated to point only to guilt as they must under the Hodge’s principle. The precipitate action of the police has left the evidence in a state where in my view a rational hypothesis of innocence cannot be excluded.”

18     This Court must ask itself whether on the whole of the evidence any rational hypothesis of innocence exists. Any such hypothesis must rest in the explanation given by the accused, and that amounted to this that she had no intent to exercise control over the marijuana which she had found in the trunk of her car, and that at the time of the accident she had been driving about the City for about an hour looking for friends from whom she might obtain advice as to what she should do with it. The learned trial Judge did not think the defendant had consented to possession of the drug, and I infer that [*page268] it was on this ground he acquitted her.

19     In my opinion there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he has not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession. In the instant case the accused contended, under oath, that she was panic stricken and did not know what she should do when she found the narcotic in the trunk of her car, and that she drove around the City for about an hour before the accident in an attempt to find some of her friends from whom she might obtain advice as to what she should do with it. While the evidence is extremely suspicious, I cannot say that the learned trial Judge erred in failing to convict the accused if he had a reasonable doubt as to whether she intended to exercise dominion or control over the narcotic.

20     For the foregoing reasons I would dismiss the appeal.

Appeal dismissed.

What's coming up at the SCC? October crim law hearings on the legalities of birth and maternal responsibility

These struck me as a connected set of cases, although you may well disagree.

On October 10, a case from Ontario,  R. v. Levkovic 2010 ONCA 830 (Canlii). Watt J.A.’s first three paragraphs are a concise explanation of the core issue:

 [1]               Since July 1, 1893, concealing the dead body of a child has been an indictable offence in Canada.  The definition of the offence has always declared it to be immaterial whether the child died before, during or after birth.

[2]               On September 18, 2008, a judge of the Superior Court of Justice decided that the words “died before … birth” in s. 243 of the Criminal Code are unconstitutionally vague.  In the result, he severed the preposition “before” from the section, leaving it to read in its material part “whether the child died during or after birth”.

[3]               The prosecutor acknowledged that he could not establish either the cause or the time of death, thus he offered no evidence in support of the allegation contained in the indictment.  The trial judge acquitted Ms. Levkovic.

Those who have been following the recent debate in Parliament  over motion 312 (ultimately the motion did not pass) calling for a special committee to study the Criminal Code definition of “human being”, may see some resonances in Levkovic. Section 223 contains the definition (“A child becomes a human being within the meaning of this act when it has completely proceeded, in a living state, from the body of its mother whether or not (a) it has breathed, (b) it has an independent circulation, or (c) the navel string is severed.).  This definition is cited in Levkovic (see para 112).  But the conclusion is:

[115]      For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.

[121]      The portion of s. 243 upon which the trial judge focused here cannot be uprooted from its context and subjected to microscopic scrutiny. This offence requires proof of knowledge of the character of the subject-matter disposed of, the dead body of a child, together with a purpose, or ulterior intention, of concealment of the birth. It is one of several offences, fatal offences against the person, that enjoin conduct that causes or contributes to the death of another.  A provision that renders investigation of death less difficult forms an integral part of this statutory scheme.

The Criminal Lawyers Association of Ontario is intervening, along with the AG Canada.

The next day brings R. v. A.D.H. 2011 SKCA 6 (CanLii) by leave from Saskatchewan. The facts involve a precipitous birth in a Walmart washroom.

[17]  The issues in this case are the mens rea required under s. 218 of the Code and whether A.D.H. had a defence of mistake of fact.  Section 218 reads as follows:

Abandoning child

218. Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Finally, on October 16, Rochon c. R., 2011 QCCA 2012 (CanLII), an as of right appeal from the QCCA (no, Wagner was not on the bench) that may strike a certain kind of fear into parents everywhere.  Also reminded me of Regina Austin, 14 Yale J.L. & Feminism 273 (2002)  Step on a Crack, Break Your Mother’s Back: Poor Moms, Myths of Authority, and Drug-Related Evictions from Public Housing – with clear contextual differences. But Austin’s discussion of “maternal authority” is interesting in this context.

The decision is in French, so here’s the summary available on the SCC website (“Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.”):

…. Whether complicity by omission under s. 21(1)(b) of Criminal Code requires existence of legal duty to act and whether failure to act by person who omits to exercise authority over another person or property can constitute actus reus of that offence.

Ms. Rochon entrusted her property to her son in her absence. When she returned to her property in the summer, she found that marijuana was being cultivated on her land. She asked her son twice to remove the crop, but she did not want to report him to the authorities. The trier of fact concluded from the evidence that Ms. Rochon had known of the situation and had therefore been obliged to call the police and report what her son was doing.

via Supreme Court of Canada – SCC Case Information – Summary.

SCC decision in D.A.I.: Tomorrow

The Supreme Court of Canada will be releasing a decision in D.A.I. tomorrow.

Here is a link to the Ontario Court of Appeal decision in this case.  The Supreme Court summary says:

Criminal law – Evidence – Witnesses – Competence – Testimony of developmentally disabled witness – Does a mentally challenged witness need to demonstrate an understanding of the obligation to testify truthfully before being permitted to testify under s. 16(3) of the Canada Evidence Act? – If s. 16(3) imposes this requirement, what is the standard for determining whether a witness understands the duty to speak the truth and how should it be applied? – Did the Court of Appeal err by failing to identify errors in the trial judge’s hearsay admissibility analysis, which resulted in the exclusion of the complainant’s out of court statement?

The accused was charged with sexually assaulting a 19 year old developmentally disabled woman with the cognitive capabilities of a three to six year old child. He had been cohabiting with the complainant’s mother, the complainant and her sister from 2000 to 2004. The complainant told her teacher about a “hugging” game that she played with the accused which resulted in the police being contacted. During her recorded interview with a police officer in 2005, she demonstrated that the game involved the touching of her breasts, genital area and buttocks underneath her pyjamas and stated that this happened “all the time”. At a preliminary inquiry in 2006, the complainant was found to be a competent witness under s. 16 of the Canada Evidence Act. The issue of her competence arose again at trial.

Here’s the Crown Factum and D.A.I.’s.

Here is the factum from LEAF/Disabled Women’s Network of Canada (DAWN). Other Interveners:

Council of Canadians with Disabilities


Criminal Lawyers’ Association (Ontario) and


People First of Canada and Canadian Association for Community Living




SCC releases J.A.: No "advance consent" in Canadian sex assault law

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.


Here is the full text of the decision.

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)

[1] 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.

[2] 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. 

American sites actually wrote about this (link to T. Clark-Flory in Salon).  Although for some it was just an opportunity to mock us for those ceremonial santa suits the SCC has.

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.”