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Originally Posted by GioforPM
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The law as it is written down in the code may be settled. It's real-life applications (which is what matters in the end) are not. The court cases I have noted here show actual significant disagreement among judges as to whether a person committed a criminal sexual assault or engaged in perfectly legal consensual activity. The disagreement is in how to apply the code sections you have linked. The "law" includes both the code text and common law judicial interpretations of it.
Imagine being an accused person having had your case assessed by 13 judges and them being split on whether you are a criminal who will go to prison and be listed as a sex offender for 20 years or whether you are a law abiding citizen who goes home found not to have committed a crime.
From that actual SCC case in 2011:
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The only question before this Court is whether consent for the purposes of sexual assault requires the complainant to be conscious throughout the sexual activity. This is because the Crown appeals to this Court as of right on the basis of “any question of law on which a judge of the court of appeal dissents”: Criminal Code , s. 693(1) (a). Accordingly, whether the complainant consented in fact or suffered bodily harm are not at issue; nor is the Court of Appeal’s holding that, for reasons of procedural fairness, the Crown in this case cannot rely on bodily harm to vitiate consent since it did not formally allege that bodily harm occurred. Since the issue of bodily harm is not before this Court, I take no position on whether or in which circumstances individuals may consent to bodily harm during sexual activity. In my view, it would be inappropriate to decide the matter without the benefit of submissions from interested groups.
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The dissenting opinion agreed on this point, quite literally writing that "the issue of bodily harm must be left for another day."
You say I am posting things which are "simply not true". The court that decides these issues for every person in the entire country says you are wrong. Nowhere in your link to the text of the legislation can you find the reality that the SCC has deliberately left it an undecided issue just how much bodily harm a Canadian can legally consent to during sex.
While the prior consent issue itself is now resolved by virtue of this case, this excerpt of the dissenting opinion shows how unsettled the issue was and may give a preview of the complete lack of consensus on future issues such as the one of bodily harm:
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It is a fundamental principle of the law governing sexual assault in Canada that no means “no” and only yes means “yes”.
K.D., the complainant in this case, said yes, not no. She consented to her erotic asphyxiation by the respondent, J.A., her partner at the time. Their shared purpose was to render K.D. unconscious and to engage in sexual conduct while she remained in that state. It is undisputed that K.D.’s consent was freely and voluntarily given — in advance and while the conduct was still in progress. Immediately afterward, K.D. had intercourse with J.A., again consensually.
K.D. first complained to the police nearly two months later when J.A. threatened to seek sole custody of their two-year-old child. She later recanted.
We are nonetheless urged by the Crown to find that the complainant’s yes in fact means no in law. With respect for those who are of a different view, I would decline to do so.
The provisions of the Criminal Code, R.S.C. 1985, c. C-46 , regarding consent to sexual contact and the case law (including R. v. Ewanchuk, [1999] 1 S.C.R. 330) relied on by the Crown were intended to protect women against abuse by others. Their mission is not to “protect” women against themselves by limiting their freedom to determine autonomously when and with whom they will engage in the sexual relations of their choice. Put differently, they aim to safeguard and enhance the sexual autonomy of women, and not to make choices for them.
The Crown’s position, if adopted by the Court, would achieve exactly the opposite result. It would deprive women of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others. That is what happened here.
Adopting the Crown’s position would also require us to find that cohabiting partners across Canada, including spouses, commit a sexual assault when either one of them, even with express prior consent, kisses or caresses the other while the latter is asleep. The absurdity of this consequence makes plain that it is the product of an unintended and unacceptable extension of the Criminal Code provisions upon which the Crown would cause this appeal to rest.
Lest I be misunderstood to suggest otherwise, I agree that consent will be vitiated where the contemplated sexual activity involves a degree of bodily harm or risk of fatal injury that cannot be condoned under the common law, or on grounds of public policy. Asphyxiation to the point of unconsciousness may well rise to that level, but the contours of this limitation on consent have not been addressed by the parties. Nor has the matter been previously considered by the Court. For procedural reasons as well, the issue of bodily harm must be left for another day.
I agree as well that prior consent affords no defence where it is later revoked or where the ensuing conduct does not comply with the consent given.
Applying these principles here, I would dismiss the appeal.
Finally, I think it helpful to set out succinctly the issue on this appeal.
According to the Chief Justice, the question is “whether an unconscious person can qualify as consenting [to sexual activity]” (para. 33). With respect, that is not the question at all: No one has suggested in this case that an unconscious person can validly consent to sexual activity.
Rather, the question is whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious. My colleague would answer that question in the negative; I would answer that question in the affirmative, absent a clear prohibition in the Criminal Code , absent proven bodily harm that would vitiate consent at common law, and absent any evidence that the conscious partner subjected the unconscious partner to sexual activity beyond their agreement.
In this case, J.A. engaged with K.D. in sexual activity to which K.D. freely consented while conscious. The Chief Justice would nonetheless convict J.A. of sexual assault, a serious crime. I oppose this result. In my respectful view, it is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy. And it is wrong on the facts of this case.
That is what divides us. The rest is commentary.
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In 2013 the U of A and U of C law schools debated this case during their annual Alberta Court of Appeal moot competition - specifically to argue the yet to be decided question whether during BDSM type sex a person can voluntarily consent both in fact and in law to being injured to the point of "bodily harm" in the Criminal Code. I tried to find a link but I can't. I was the U of C team instructor...you can believe me or not on the point.
I dare say that for someone like Kane who may be charged with sex assault including an allegation of leaving bite marks this unsettled area of the law (if it is also that way in New York) could make or break the case. Depending, of course, on upon the actual facts and evidence or lack thereof.