The Supreme Court's 6-3 majority decision, authored by Chief Justice McLachlin, found him guilty on the premise that an individual cannot consent to sexual acts in advance of being rendered unconscious. This writer appreciates that the Supreme Court's arguments here are not founded in obnoxious prudery or puritanism, but rather are a consideration of the nature of how sexual consent should operate in the scenario in question, while also considering the obvious issue of how far the state should intervene in the bedrooms of the nation. However, that does not change my belief that this decision is, at best, wildly off-base.
In fairness, the decision is well-written and anticipates many potential counterarguments, such as where McLachlin C.J. discusses the obvious comparison to surgery, where patients must supply advance consent to their doctors before being rendered unconscious:
Parliament has indicated that the notion of consent for sexual assault is distinct from consent in other contexts... It has also enacted special protections for medical practitioners, exempting them “from criminal responsibility for performing a surgical operation on any person for the benefit of that person”... Consequently, the fact that individuals may consent in advance to surgery does not determine if they may consent in advance to sexual activity... Surgical interventions are usually carefully planned, and appropriate consent is assured by consent forms and waivers — all to the end of limiting the risk of abuse. Such safeguards are rare, if perhaps non-existent, in the sexual arena.Chief Justice McLachlin's disposition of this argument is logical, but it is unfortunately an excellent example of how sometimes a court can, in an effort to establish its position in judicial logic as much as is possible, can ignore the obvious normative problem of suggesting that people can consent, in advance of becoming unconscious, to being cut open with knives but not to oral sex. It also ignores the obvious fact that "such safeguards are rare" with regards to sex because most sexual activity does not involve, for a start, the invasive use of scalpels. In short, a comparison of medical activity to sexual activity that argues that surgery should have what amounts to a lower threshold of consent than simple sexual play is wrongheaded on its face. It is a comparison of apples and oranges in many ways, which perhaps makes it not the least useful argument for the defense, but for the Supreme Court to take that comparison and run with it in the wrong direction is a mistake.
McLachlin C.J. also addresses the defendant's argument that this law creates absurd outcomes (e.g., someone kissing their sleeping partner thereby potentially committing sexual assault) with multiple arguments. She first suggests that altering consent to allow advance consent to particular sexual acts before going to sleep would create hypothetical scenarios where a complainant did not consent to specific acts and therefore if a complainant did not expect to be kissed while asleep this would not help the defendant.
All of these arguments are again technically correct to some extent, but what they all have in common is that Chief Justice McLachlin here has completely failed to address the defendant's argument: this ruling will and does create absurd situations, such as the aforementioned kissing-sleeping-partner-is-sex-assault scenario. None of her arguments for the proposed no-advance-consent regime address this point; they merely justify the ruling instead.
Her argument also betrays herself. Consider her second argument, wherein she states that advance consent cannot be allowed because of the potential for a partner being "unintentionally violated" by an "innocent misunderstanding." These are not words that properly belong in any description of sexual assault: here McLachlin seems to almost be disposing with the need for mens rea in sexual assault altogether, even beyond Canada's rigorous standards of "no means no" placing a much higher demand for ascertaining consent before engaging in sexual activity.
A comparison, if you will. Consider an individual who wishes to be sexually dominated by their partner: traditionally partners engaging in this sort of play will use a safeword or code phrase to indicate when behaviour that they genuinely do not wish to engage in is taking place. However, it is entirely possible that a safeword might not be used until after an activity to which the potential complainant might not wish to consent has taken place - perhaps because they were distracted by another element of their sexual activity, or were unable to speak the safeword for whatever reason, or because the activity in question occurs too quickly for them to say it before it happens. After the activity takes place, the complainant speaks their safeword and their partner, who genuinely isn't interested in sexually assaulting the complainant or doing anything nonconsensual, stops the sexual activity.
Is this scenario sexual assault?
Possibly Chief Justice McLachlin would respond to this argument by saying that the potential complainant in this case is conscious and therefore able to rescind consent at will, but as I've just pointed out sometimes consent cannot be rescinded quickly enough to prevent unwanted sexual activity from occurring. Indeed, this scenario can qualify on two of McLachlin C.J.'s arguments: that the potential complainant did not consent to particular sexual acts beforehand, and that the complainant's wishes can be misinterpreted. It appears that, given her arguments, that entirely consensual dominance/submission performed while awake can fall into the realm of sexual assault, because her concerns are not with the giving of consent but the inability to rescind that consent.
Justice McLachlin's concern that allowing prior consent to unconscious activity "would impose on the courts the task of determining how consent to unconscious sexual activity can be proven" is not an unreasonable one, but it appears that this option is the only reasonable alternative. This is not an area where a single universal rule is particularly workable: any judge must take into account the partners' sexual practices and what would be considered normative behaviour in those partners' context, and begin their assessment from there. Would it be preferable if this was a burden we could avoid placing on the judiciary? Certainly. But in this writer's view, these scenarios do not lend themselves to any other solution.