University of Alberta Faculty of Law Blog

R v J.A: The Tangent

Earlier today, the Supreme Court released its decision in R v J.A, the case involving an Ottawa man convicted for sexually assaulting his partner during a round of consensual erotic asphyxiation by tying her hands behind her back while she was unconscious and then inserting a dildo into her anus as she was regaining consciousness. The case provided the opportunity for the SCC to revisit its consent jurisprudence in the context of the Criminal Code's sexual assault provisions. The majority, led by Chief Justice McLachlin, restored the conviction for sexual assault (a conviction at the trial stage was set aside by the Ontario Court of Appeal), reasoning that "[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is...not consensual within the meaning of the Criminal Code." In their dissent, the minority (Fish, LeBel and Binnie) noted that the issue in the case was not whether or not an unconscious person can consent to sexual activity, but rather, "whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious." No summary of the decision can do justice to the opposing judgments, so I recommend reading the full decision.

As one might expect from a case straddling that thin line between factual and legal realities, the case is "trending" among lawyers in the usual places on the social network. It has generated some good debate among my Facebook friends, and I just gave my wife an earful on the ins and outs  of consent law, mens rea, etc. Personally, I think the minority got it right, mainly due to the fact that their opinion relies on a non-paternalistic reading/interpretation of consent rules that I find very compelling. Given the facts of the case, the minority opinion is also the just and sensible one. I plan to unpack these observations in a case comment. For now, I'd like to highlight a couple of observations about the SCC decision. The first is a question based on comments on the case by some of my colleagues, and the second is a brief commentary on the writing styles of the two lead justices. I welcome your comments on both topics.

1. Given that no female justice joined the dissent, does gender play any role in deciding cases like this?
(I should note that a female justice led the majority in the Ontario Court of Appeal)

2. As far as judicial writing goes, Justice Fish's dissenting opinion gets top marks from me. His opinion is succinct but clear, flows logically, and is very well canvassed. I encourage anyone who teaches legal research and writing to consider using it as an example of how to construct and dismantle legal arguments. Here are some nuggets:

"We are nonetheless urged by the Crown to find that the complainant’s yes in fact means no in law. With respect for those who are of a different view, I would decline to do so."

"According to the Chief Justice, the question is “whether an unconscious person can qualify as consenting [to sexual activity]”. With respect, that is not the question at all: No one has suggested in this case that an unconscious person can validly consent to sexual activity."

"In this case, J.A. engaged with K.D. in sexual activity to which K.D. freely consented while conscious. The Chief Justice would nonetheless convict J.A. of sexual assault, a serious crime.  I oppose this result. In my respectful view, it is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy.  And it is wrong on the facts of this case.
That is what divides us. The rest is commentary."

I was wrong when I said earlier that no summary can do justice to the full decision: the latter quote does just that.

Are writing skills an important component of the judicial function or a factor in judicial appointments? I do not know of any studies of judicial writing styles in Canada, but I sure would like to undertake one. The matter has received some attention in the U.S.

Greatest comic book lawyers

Topless Robot lists the top 13 best lawyers in comic books.  If that interests you, be sure to check out William A. Hilyerd's thorough article in the Widener Law Review that runs through the history of comic book attorneys - Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007

 

Binnie and Charron retiring

Read the CJ's announcement here.

Guess who's coming to U of T?

Michael Ignatieff did not have to wait long for another job. He is returning to the U of T's Massey College as senior resident and will be teaching in several departments, including the Faculty of Law.