CONTENT NOTE: sexual assault.
Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent. …
The responsibility for ensuring there is consent is on the person who is initiating or pursuing the sexual activity. When someone has said no to sexual contact, the other person cannot rely on the fact that time has passed or the fact that the individual has not said no again to assume that consent now exists.
We’re considered a model for other states. So you’d think a case like this would be easy: a woman called a cab home from the bar, as she was too drunk to drive (blood tests would put her at over twice the legal limit). She was so drunk she peed her pants, in fact. Yet roughly half an hour later, she was found passed out and half-naked in the back of a cab. She couldn’t remember anything, but her cab driver wasn’t wearing pants and her DNA was all over him.
… [Judge] Lenehan said, while she was unconscious when Const. Monia Thibault found her, and therefore unable to consent, the judge said it is “unknown” when she passed out, and “this is important” as she may have consented to the encounter before losing consciousness.
He acknowledged that someone “who is unconscious or is so intoxicated … as to be incapable of understanding or perceiving the situation that presents itself” cannot provide consent under Canadian law.
“This does not mean, however, that an intoxicated person cannot give consent to sexual activity,” Lenehan said. “Clearly a drunk can consent.”
Rules are only as good as the system that implements them. If judges fail to follow the law, if police officers routinely ignore or dismiss sexual assault, then our laws are curtains on a broken window. It explains why sexual assault is so rarely reported in Canada.