ESSENTIALISM MAKES FOR STRANGE BEDMATES: THE SUPREME COURT CASE OF J.A. AND THE INTERVENTION OF L.E.A.F.

Abstract

In the recent case of R. v J.A, the majority of the Supreme Court of Canada determined that an unconscious person could not consent in advance to sexual touching. This paper reviews the majority reasoning and questions whether the intervention of the Women’s Legal Education and Action Fund [LEAF] penetrated the reasoning. The majority couched its reasoning in the interpretive tenets of judicial conservatism. Yet this conservatism aligned with the equality-based submissions of LEAF. Moments of such converging ideologies are relatively unique in the jurisprudence. This convergence is compared with a notable historical moment of convergence in the development of indecency and obscenity law in Canada. This time, however, LEAF’s rationales are more likely to meet little in the way of academic or activist critique because of the changing nature of identity politics in Canada.