Quote:
Originally Posted by Iowa_Flames_Fan
I don’t practice in this area, so it’s risky for me to disagree with MBates, who does… but I don’t see how it’s possible to say that Scenario A is a sexual assault under Canadian law unless we know whether the person consented to the touching. Lack of consent is part of the offence.
If MBates is saying “if there is no consent, it’s potentially assault” then I can agree. At that point there might be defences available around reasoned belief in consent and so on, but I’m way over my skis talking about anything like that.
But if MBates is saying scenario A, involving casual contact between intimate partners is always sexual assault because of the SCC ruling in JA, then I don’t think that’s right. That was (kind of) Justice Fish’s argument, but he was in the minority and I think even he would have recognized that as a bit of reductio ad absurdum. And even his example involved a sleeping partner, not one that is awake as in Scenario A. The issue in JA was not whether you could consent in advance to being touched by your partner while awake; to me there is no question that you can. You can also revoke that consent at any time, which is kind of the point.
JA does not, to me, stand for the proposition that you can’t consent in advance to being touched by your partner. Consent is always in advance: that’s how time works. JA stands for the proposition that you can’t consent in advance to being touched at a time when you can no longer give consent, or revoke the consent you gave previously.
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You captured what I was intending and I have now corrected (except that if there was no factual subjective consent, then on the scenario given there would be no defence of mistaken belief in communicated consent).
And you are correct Justice Fish in JA was not saying all examples of advance consent were illegal...that case was dealing with a situation solely about whether a person can consent in advance to something being done in a transient state of unconsciousness.
But his point is not wrong. It is technically a crime to kiss your spouse awake in the morning because for good or bad the majority decided that Parliament does not allow people to consent to that even with a clear and unequivocal 'yes'.