## Facts

- J.A. and K.D., long-term partners, engaged in sexual activity involving erotic asphyxiation.
- During the encounter, J.A. choked K.D. until she became unconscious; K.D. testified she consented to being choked and understood she might lose consciousness.
- K.D. estimated she was unconscious for less than three minutes.
- When K.D. regained consciousness, her hands were tied behind her back and J.A. was inserting a dildo into her anus; J.A. stopped shortly after she regained consciousness.
- The parties then engaged in vaginal intercourse.
- K.D. reported to police that she had not consented; she later recanted, but prosecution proceeded.
- Charges included aggravated assault, sexual assault, attempting to render the complainant unconscious to facilitate sexual assault, and breach of probation.
- The trial judge acquitted on aggravated assault and the choking-related count, but convicted J.A. of sexual assault and breach of probation, reasoning that sexual activity occurring while K.D. was unconscious could not be legally consented to.
- The Ontario Court of Appeal set aside the sexual assault conviction and ordered a new trial.
- The Crown appealed to the Supreme Court of Canada.

## Issues

1. Whether the statutory definition of consent to sexual activity requires a conscious, operating mind throughout the sexual activity.
2. Whether a person can give legally effective advance consent to sexual activity that will occur while the person is unconscious.

## Decision

- The Supreme Court of Canada allowed the Crown’s appeal and restored the sexual assault conviction.
- The majority held that consent under the Criminal Code requires a conscious, operating mind during the sexual activity in question.
- The majority held that sexual activity performed on an unconscious person is criminal, even if the person agreed in advance.
- A dissent would have permitted advance consent in limited circumstances, subject to statutory limits and the scope of the prior agreement.

## Legal Principles

- Consent to sexual activity is the complainant’s voluntary agreement to engage in the specific sexual activity at the time it occurs.
- Valid consent requires ongoing, conscious agreement so the complainant retains the ability to revoke consent during the activity.
- An unconscious person lacks the capacity to consent; advance authorization cannot supply legally effective consent during unconsciousness.
- Sexual touching that occurs while the complainant is unconscious is non-consensual in law, regardless of prior agreement, and constitutes sexual assault if the other elements are met.

## Conclusion

The court held that the Criminal Code requires contemporaneous, conscious consent throughout sexual activity, and therefore a person cannot legally consent in advance to sexual acts that occur while the person is unconscious; on that basis, the sexual assault conviction was reinstated.


R. v. J.A., [2011] 2 S.C.R. 440 (Can. 2011)