Consent to sexual activity must be made by an individual who is conscious throughout the sexual activity. Thus, in a case where the complainant had been in the habit of engaging in consensual choking during sexual activity for arousal, and the accused had penetrated her whilst she was unconscious, there was no consent in law. The trial judge properly convicted of sexual assault on the basis that consent could not be given during such unconsciousness. Neither the Criminal Code nor jurisprudence supports the idea that consent may be given in advance. To rule otherwise would be to negate the person from changing her mind about the contact at any point in the sexual encounter.

R. v. A. (J.), 2011 CarswellOnt 3515, 2011 CarswellOnt 3516 (S.C.C.)