In a 6-3 decision in R. v. J.A., the top court overturned an Ontario Court of Appeal ruling and reinstated a sexual assault conviction on a man who had sex with his partner during an mutually agreed-upon erotic asphyxiation session.
"The definition of consent for sexual assault requires the complainant to provide active actual consent throughout every phase of sexual activity," said Chief Justice Beverley McLachlin, writing for the majority. "It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance."
The case involves an Ottawa couple, referred to as J.A. and K.D. During sex one evening in 2007, J.A. placed his hands around K.D.'s throat and choked her until she was unconscious.
K.D. testified she consented to being asphyxiated and that the couple had experimented with the activity before. She said she was out cold for less than three minutes.
Upon coming to, she realized her hands were tied behind her back and that J.A. was inserting a dildo into her anus.
He removed the implement 10 seconds after she regained consciousness and the couple had vaginal intercourse. J.A. cut her hands loose when they were done, notes the ruling.
K.D. filed a complaint with police two months later, saying she had consented to being asphyxiated but not to the sexual activity. She later recanted the story, saying she made the allegation because J.A. threatened to seek sole custody of their young son.
After a trial, J.A. was found guilty of sexual assault. The Court of Appeal later set aside the conviction and dismissed the charges.
The Women's Legal Education and Action Fund, which intervened in the case, hailed the Supreme Court decision for affirming legal protection for women who are vulnerable to sexual assault by predatory men.
"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," says LEAF legal director Joanna Birenbaum.