In R. v. Dippel, the Alberta Court of Appeal ruled that an unconscious action that has the effect of indicating consent to another party cannot constitute actual consent according to s. 273.1(1) of the Criminal Code. The accused in the case was charged after he joined the complainant in a bed where she was asleep. He attempted to initiate a sexual encounter and she lifted her arm unconsciously. The trial judge found that he honestly perceived this as an invitation for him to fondle her. He then digitally penetrated her at which point she awoke and fled the room. The trial judge concluded that the complainant would not have consented with the accused.
The Court rejected the defence of honest mistaken belief in consent, holding that such a belief could only have arisen after the initial sexual contact. The Court found that the requirement to take reasonable steps to ascertain whether the complainant was consenting had not been met by the accused. Specifically, it found that ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The Court allowed the Crown's appeal and found the accused guilty. While the Court was preparing its decision, the Supreme Court of Canada released R. v. J.A., which confirmed the Alberta Court of Appeal's holding here that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act.
June 14, 2011
http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2011/2011abca0129.pdf
Leonard Elias & Dominik Swierad
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