Can Consent Be Given in Advance? A Canadian Case
A criminal case from Ottawa put a narrow but weighty question to Canadian judges: can an adult agree ahead of time to sexual activity that will take place while unconscious? The issues reached far beyond the people involved. They concern personal autonomy, the limits of consent and the way courts treat consensual rough or restrictive play.
Defence lawyers, women's rights advocates and kink communities all followed the case, and each read its meaning in a different way. The proceedings are a reminder that criminal courts decide such questions on the specific wording of the law, not on community norms alone.
What the case concerned
Reports described an adult couple in a long relationship and a sexual encounter during which one partner lost consciousness after activity the couple had discussed beforehand. A complaint was made to police, and the matter proceeded to trial.
The trial judgment
The trial judge convicted the accused of sexual assault. The reasoning was that agreement given before losing consciousness cannot stand in for agreement during the activity.
The appeal majority
The Ontario Court of Appeal split two to one and allowed the appeal. The majority held that when a person has agreed beforehand, nothing more is required, because the only state of mind the person ever had was one of agreement and withdrawal becomes impossible once consciousness is lost. Ruling otherwise, they wrote, would take away an important part of personal autonomy. They likened it to a patient who accepts an operation knowing it will occur under anaesthetic.
Supporters of that result described it as respect for an informed adult who decides which acts she is open to, without the law treating her like a child.
Objections and the higher court
Some legal scholars disagreed, arguing that the approach undervalues human dignity and the protective purpose of consent rules. The Supreme Court of Canada later took up the question and, in a divided ruling, held that the Criminal Code definition of consent requires a conscious, operating mind throughout the activity, so earlier agreement does not cover acts done during unconsciousness. Section 273.1 sets out the statutory meaning of consent in sexual assault offences.
Frequently asked questions
Can consent be given in advance for acts during unconsciousness?
Under the Supreme Court of Canada ruling that followed this case, no. The Criminal Code meaning of consent requires a conscious mind throughout the activity.
What did the Ontario Court of Appeal majority decide?
By a two to one margin, it held that earlier agreement was enough, a view the higher court later rejected.
Sources and further reading
Related reading
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Updated November 2026. General information only, not medical, legal or professional advice. See the disclaimer and the medical disclaimer.