OTTAWA—Canada’s courts long ago determined that no means no when it comes to sex; now the Supreme Court is considering to what extent yes means yes.

The high court is deliberating about whether a person can consent in advance to sexual activity that will take place when they’re unconscious.

Justices reserved judgment Monday after hearing arguments in a 2007 case involving a woman who was choked to unconsciousness by her common-law spouse, known only as J.A. When the woman awoke, she found herself bound and being anally penetrated with a dildo.

The woman, whose identity is under publication ban, first told police she did not consent to the asphyxiation and subsequent sexual activity. But she later recanted.

Her evidence at trial was described by the judge as a “typical cross-examination of a recanting complainant in a domestic matter.”

J.A. was convicted of sexual assault on the grounds that it’s not possible for a person to consent ahead of time to sexual activity while they’re unconscious. But an appeal court decided that since the woman had consented and since there was no evidence she changed her mind, it overturned the conviction.

The nine Supreme Court justices hearing the case quizzed lawyers for both sides on what the idea of consent in sexual assault cases means.

One judge asked if it could be assault if a spouse kissed a sleeping partner without consent.

Crown lawyer Christine Bartlett-Hughes acknowledged there must be some discretion applied as to whether a sexual act constitutes harm.

But Justice Rosalie Abella questioned the contextual approach.

“If the paradigm has been that consent includes the right to withdraw consent and that you cannot withdraw consent if you don’t know what is taking place because you are unconscious or asleep, that’s not a question of harm,” said Abella.

“That’s a question of being aware enough that you can continue to consent or not...”

But an unconscious person loses the ability to change their mind, said Bartlett-Hughes, and therefore loses the ability to consent.

“At that point, that person don’t have knowledge of how the activity is occurring,” she said.

J.A.’s lawyers argued that the couple had clear parameters established ahead of time with regards to their intimate relations and rules about how the woman would indicate her partner should stop.

“Surely, she must have contemplated that while she was unconscious she would not be able to revoke her consent,” said Howard Krongold.

Abella reflected that the current “no means no” definition of consent to sexual activity is about state of awareness.

“The whole construct is the consent continuing throughout the sexual activity,” she said.

The Attorney General of Canada and the Women’s Legal Education and Action Fund also appeared before the court to argue that advanced consent must not be considered a legal defence in sexual assault cases.

“The law must apply for the protection of individuals who are their most vulnerable and here we are talking about people who are their most vulnerable,” said James Martin, a lawyer with the Attorney General’s office.

“They are totally subject to the will of the person in whose company they are unconscious.”