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Criminal law - Sexual assault - Consent - Whether the majority of the Court of Appeal erred by concluding that the complainant could in law consent in advance to sexual activity that occurred while she was unconscious - Criminal Code, R.S.C. 1985, c. C-46, ss. 265 and 273.1.

The Respondent was acquitted of aggravated assault and of attempting to render his partner unconscious to enable him to sexually assault her, although he was convicted of sexual assault and breach of probation. At trial, the complainant testified that she consented to the Respondent choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. She also admitted at trial that she only complained to the police about the incident approximately one and a half months after it occurred, because of an argument she had had with the Respondent. Instead of having the complainant’s videotaped statement to police, in which she stated she had not consented to the sexual activity in question, admitted for the truth of its content, the Crown took the position that as a matter of law, it was not open to the complainant to consent in advance to sexual activity expected to occur while unconscious. In convicting the Respondent of sexual assault, the trial judge concluded that while the complainant and the Respondent had previously discussed anal penetration, there was never any consent. The trial judge also concluded that the complainant could not legally consent in advance to sexual activity while unconscious. The majority of the Court of Appeal allowed the appeal, set aside the Respondent’s convictions and dismissed the charges. It found that the evidence led at trial was insufficient to support a finding that the complainant did not consent. The majority also concluded that there was no basis for holding that, as a matter of general principle, a person cannot legally consent in advance to sexual activity expected to occur while that person is unconscious or asleep, and that if anything, a review of the relevant case law supports the opposite conclusion. LaForme J.A., dissenting, would have dismissed the appeal, finding that prior consent is not effective as a matter of law because unconsciousness deprives the person consenting of the ability to express consent or know whether they are consenting at the time the sexual activity occurs.