SCC Decision on Consent

[CDNBear]

The SCOC has, or is running the risk, of reopening the debate on the issue of medical treatments/surgeries/therapies by virtue of the uniqueness of this particular case.

I don't think so. Since the definition they used pertains specifically to sexual contact, full stop.

There is by virtue of wholly separate legislation, a presumed consent for life saving measures.

Because it is not unreasonable to believe that someone wants to live.

 

[Tonington]

The SCOC has, or is running the risk, of reopening the debate on the issue of medical treatments/surgeries/therapies by virtue of the uniqueness of this particular case.

The Supreme Court has already had these debates...check out the Supreme Court of Canada Lexum, and search "medical consent".

The two issues are not comparable as far as the law is concerned.

 

[captain morgan]

I don't think so. Since the definition they used pertains specifically to sexual contact, full stop.

There is by virtue of wholly separate legislation, a presumed consent for life saving measures.

Because it is not unreasonable to believe that someone wants to live.

The Supreme Court has already had these debates...check out the Supreme Court of Canada Lexum, and search "medical consent".

The two issues are not comparable as far as the law is concerned.

All I'm saying is this: The recent SCOC decision made is in it's own way ground-breaking in that they have recognized something 'new' relative to sexual contact.

The logic that the SCOC will publish to justify their decision can now be analyzed by other groups/interests and potentially applied to areas outside sexual conduct/abuse. It will be the use of this logic, and not this specific case about sexual contact that will be employed in forwarding a hearing before the SCOC.

This won't be the first time that it has happened, nor will it be the last.

 

[Kreskin]

All I'm saying is this: The recent SCOC decision made is in it's own way ground-breaking in that they have recognized something 'new' relative to sexual contact.

The logic that the SCOC will publish to justify their decision can now be analyzed by other groups/interests and potentially applied to areas outside sexual conduct/abuse. It will be the use of this logic, and not this specific case about sexual contact that will be employed in forwarding a hearing before the SCOC.

This won't be the first time that it has happened, nor will it be the last.

It's actually the other way around. Contractually you can't be held accountable to deliver something that you receive no benefit from. This acknowledges that the same principle applies here.

 

[captain morgan]

It's actually the other way around. Contractually you can't be held accountable to deliver something that you receive no benefit from. This acknowledges that the same principle applies here.

I don't really understand what you've said here.

 

[Kreskin]

I don't really understand what you've said here.

I'm just saying that the ruling is similar to how the law treats all contracts between individuals.

 

[captain morgan]

I'm just saying that the ruling is similar to how the law treats all contracts between individuals.

I'm interested in what you've suggested, but ultimately there are complicating factors that vault this issue into something way outside of contracts/agreements between individuals. The most obvious difference as Bear pointed-out is that the activity in question may border in illegal behaviour (excluding the sex component), I would imagine that the asphyxiation component would probably be viewed as a form of assault. Would that nullify any kind of legal argument via contract law?

Contractually you can't be held accountable to deliver something that you receive no benefit from. This acknowledges that the same principle applies here.

From a contracts perspective, if I recall correctly, the three necessary elements are offer, acceptance and consideration... The benefit that you refer to represents an intangible dependent on the subjectivity of the recipient. That said, both parties could easily defend the 'benefits' argument and because it isn't in a tangible, measurable form, who is to say it doesn't exist?

 

[Kreskin]

I'm interested in what you've suggested, but ultimately there are complicating factors that vault this issue into something way outside of contracts/agreements between individuals. The most obvious difference as Bear pointed-out is that the activity in question may border in illegal behaviour (excluding the sex component), I would imagine that the asphyxiation component would probably be viewed as a form of assault. Would that nullify any kind of legal argument via contract law?





From a contracts perspective, if I recall correctly, the three necessary elements are offer, acceptance and consideration... The benefit that you refer to represents an intangible dependent on the subjectivity of the recipient. That said, both parties could easily defend the 'benefits' argument and because it isn't in a tangible, measurable form, who is to say it doesn't exist?

I guess we're really getting off topic but there are parallels to the SC ruling and they way we live and interact in the rest of our lives.

A couple of examples:

A personal services contract is unenforceable. For example, a hockey player signs a contract to play but he still has the right to refuse to play. He reserves that right at all times. If he's unconscious they can't prop him up in net just because he signed a contract saying they could do it.

In Canada it is illegal for the wife to retrieve the sperm from her dead husband, even if he pre-consented to it.

 

[PoliticalNick]

I don't think so. Since the definition they used pertains specifically to sexual contact, full stop.

There is by virtue of wholly separate legislation, a presumed consent for life saving measures.

Because it is not unreasonable to believe that someone wants to live.

So what about life-saving measures in a case of attempted suicide? That person has tried to end their life so reasonable logic could presume that any medical treatment is against their will and they can now argue there is no conscious continual consent using this ruling as a precedent.

 

[Retired_Can_Soldier]

Would this then mean that a male who is sleeping will have to get consent from his johnson should he have an erotic dream and suddenly start joking the living crap out of his unaware.............

 

[PoliticalNick]

Would this then mean that a male who is sleeping will have to get consent from his johnson should he have an erotic dream and suddenly start joking the living crap out of his unaware.............

I can see the headline...

Penis sues man for non-consent!

 

[Kreskin]

So what about life-saving measures in a case of attempted suicide? That person has tried to end their life so reasonable logic could presume that any medical treatment is against their will and they can now argue there is no conscious continual consent using this ruling as a precedent.

It doesn't sound reasonable to expect that the SCC would point to this decision to rule against someone attempting to save a life.

 

[PoliticalNick]

It doesn't sound reasonable to expect that the SCC would point to this decision to rule against someone attempting to save a life.

The lawyer for the person who was trying to commit suicide will point to it. They were unconscious and unable to give consent. Presents quite a conundrum.

 

[Kreskin]

The lawyer for the person who was trying to commit suicide will point to it. They were unconscious and unable to give consent. Presents quite a conundrum.

I'm pretty sure physicians all have that hippocratic oath to fall back on and the SCC will find their actions reasonable. What are they going to do, jail a doctor for saving a life?

 

[Praxius]

I never said I find the case funny... go back and read. The hypotheticals like "you'll be arrested for kissing your wife!", are amusing, sorry. It's so far out in left field. "Why if I can't choke my wife out and then switch the game up on her, next think you know, I can't even kiss her!"

It's not out in left field and the argument has nothing to do with choking anybody out. The ruling in this case makes a broad generalization that anything done in a sexual manner while the individual is unconscious and thus can not consent to the act right then and there, is sexual assault.

Sexual assault can and does cover everything from touching, kissing, fondling, sexual intercourse, oral stimulation, etc. etc.... when it is not consented by the individual.

The person can be choked out, passed out drunk, became unconscious by use of a narcotic, or simply be asleep.... in any case, anything done in a sexual nature during that time, based on this ruling, is sexual assault on the woman..... thus the argument about kissing or touching your wife while asleep, even if it was in a romantic nature or meant out of good will to wake them up to possibly have sex, or just to play around..... is sexual assault, regardless if your partner consents before or after the act..... their agreement to the act before or after doesn't apply if they can't consent during unconsciousness..... and during that time, it's an automatic sexual assault based on the ruling of this case.

Why you don't understand this, I don't know.

 

[JLM]

It's not out in left field and the argument has nothing to do with choking anybody out. The ruling in this case makes a broad generalization that anything done in a sexual manner while the individual is unconscious and thus can not consent to the act right then and there, is sexual assault.

Sexual assault can and does cover everything from touching, kissing, fondling, sexual intercourse, oral stimulation, etc. etc.... when it is not consented by the individual.

The person can be choked out, passed out drunk, became unconscious by use of a narcotic, or simply be asleep.... in any case, anything done in a sexual nature during that time, based on this ruling, is sexual assault on the woman..... thus the argument about kissing or touching your wife while asleep, even if it was in a romantic nature or meant out of good will to wake them up to possibly have sex, or just to play around..... is sexual assault, regardless if your partner consents before or after the act..... their agreement to the act before or after doesn't apply if they can't consent during unconsciousness..... and during that time, it's an automatic sexual assault based on the ruling of this case.

Why you don't understand this, I don't know.

Unless of course you can get her to state in writing what you can do after she's passed out/unconscious and get it notarized. :lol:

 

[Praxius]

Where I see the slippery slope in this particular example relates to the notion that engaging in this specific activity runs the risk of the participant being rendered unconscious as a result of the activity.

Presuming that the participant was aware of this possibility and they consented in advance knowing the potential consequences, does their original (conscious) consent apply?

The way it was explained in the link I provided, no... even if you consented to becoming unconscious and things being done to you, once you become unconconscious, that consent no longer applies.

It's fair to suggest that if the SCOC requires ongoing (conscious) consent before and during the activity; other activities mentioned in this thread (ie surgery) can be equally as applicable.

Agreed, because nobody truly knows what it done to their body while unconscious. Now the counter argument is that one should be able to trust their doctor because they're a professional, yet there have been cases of doctors who have done inappropriate things to their patients while they were put under..... and if we were supposed to trust those who are in such professional positions who are supposed to be of a higher moral standard due to their profession, we wouldn't have all this crap going on with priests and we wouldn't have had cases of corrupt doctors diddling their patients while unconscious..... so the same rules should and must apply based on the wording of the ruling.

 

[Unforgiven]

Unless of course you can get her to state in writing what you can do after she's passed out/unconscious and get it notarized. :lol:

Isn't that what happens when you're put under general anesthetic for some medical procedure? While I get the humour, I wonder if there is an argument for using such a document as a loophole.

 

[captain morgan]

The way it was explained in the link I provided, no... even if you consented to becoming unconscious and things being done to you, once you become conconscious, that consent no longer applies.



Agreed, because nobody truly knows what it done to their body while unconscious. Now the counter argument is that one should be able to trust their doctor because they're a professional, yet there have been cases of doctors who have done inappropriate things to their patients while they were put under..... and if we were supposed to trust those who are in such professional positions who are supposed to be of a higher moral standard due to their profession, we wouldn't have all this crap going on with priests and we wouldn't have had cases of corrupt doctors diddling their patients while unconscious..... so the same rules should and must apply based on the wording of the ruling.

In my opinion, what appears to be the confounding issue is the notion that the complainant agreed to actively seek to participate in an activity that would (likely) lead to an unconscious state (or severely impair their judgement).

By simple virtue the aforementioned, I am somewhat surprised that the SCOC didn't view this circumstance as being similar to a medical procedure wherein the patient knows in advance the nature of their 'unconsciousness', presumably consents (in advance) and that this consent overrides any concerns related to consent while unconscious.

 

[Praxius]

..... It would be entirely unreasonable to expect that patients must be continually able to remove consent...that would shut down most life saving surgeries. There is a good reason why the jurisprudence in Canada regarding consent is far different for medical treatment than it is for sexual assault. The two are wholly different spheres of human interaction. Hence, different laws to cover different activities.

"Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code," she wrote.

While they note "Sexual Activity", how does anybody know what sexual activity was ever done in the first place if they're unconscious?

I could wake up the next morning and there's no evidence of sexual activity, there's no knowledge anything sexual happened.... then again, maybe something happened that I wasn't aware of and never consented to.

Maybe my partner said they wanted to do something, fell asleep, and I decided not to do a damn thing and went to sleep as well.... then they wake up and assume something was done and then I get charged for sexual assault.

The same applies to operations.... you may or may not have consented to the doctor to screw around with your body while you're under..... in either case, you are "Incapable of Consciously Evaluating Whether You are Consenting"

In this case, she didn't know what he did while she was unconscous and just decided to charge him for sexual assault. Without his admission, and later, her admission she agreed to the act in the first place, there wouldn't have been any evidence either way..... but you might as well be safe then sorry and charge the person anyways.

I can agree to an operation and agree to what will be done during the time of the operation whle I'm under.... but the moment I am put under, I am no longer aware of what's going on and thus, I can not consciously evaluate if what is being done is what I consented to and that nothing else happened during that time.

Which also applies to kissing or other means of touching by your partner while asleep or just waking up, even if it was of a romantic nature and you agreed to it being done in the past. Because you can not consent during the action because you're unconscious, the courts automatically ruled that is sexual assault, which is equal to someone walking up to a stranger on the street and touching or kissing them, which is also sexual assault.