R v JA

JA and his partner planned consensual erotic asphyxiation. She lost consciousness; he then continued the sexual activity. The SCC held there is no advance consent to sex during unconsciousness — consent must be conscious throughout.

JA and his partner planned bondage and asphyxiation. The complainant lost consciousness; JA continued sexual contact, including digital penetration. After she regained consciousness, she consented to the resumption.

Can consent to sexual activity be given in advance for a period of unconsciousness?

No (6-3). Conviction restored.

Section 273.1 requires consent to the sexual activity at the time of the activity. The complainant must be conscious to give and revoke consent. Advance consent to sex during unconsciousness is not legally cognisable.

McLachlin CJ held that the legislative scheme requires capacity to consent at every step. The complainant's consent at the start of the encounter cannot be carried into a period when she lacks capacity to revoke. The dissent (Fish, McLachlin, Binnie JJ) raised concerns about overly intrusive criminalisation of consensual partners; the majority view governs.

Reinforces Ewanchuk and the centrality of contemporaneous consent. Cited in modern sexual-assault prosecutions and ongoing debate about BDSM and risk-aware sexual practice.

R v JA, 2011 SCC 28, [2011] 2 SCR 440.

McLachlin CJ, Binnie J, LeBel J, Deschamps J, Fish J, Abella J, Charron J, Rothstein J, Cromwell J