December 18, 2022

By Brian Babcock

In Canada, and most of the world, laws influence everything that we do or are not supposed to do. Laws seem to be everywhere.

You can Google “ the law of… [insert any word or phrase]” and be confident of getting many hits from serious to silly.

THE ISSUE

This includes the law of sleep. Unfortunately for those of us suffering from insomnia, it is not a law that always gets us the sleep we need.

THE LAW

Truck drivers or other commercial drivers are frequently required by various jurisdictions to obtain set amounts of sleep as part of their cycle of on and off duty. Yet we still see cases of “asleep at the wheel”.

More recently, a lot of the attention regarding the laws of sleep has focused upon human rights and constitutional rights. Now that many of the basic human rights have become entrenched, advocates are exploring the broader scope of rights that flow from or support basic rights. Studies support the theory that sleep is a necessity and therefore a right.

Sleep deprivation is used as a form of torture. Just as all human beings should have a  right not to be tortured, we all should have the right to sleep. If only that could translate into an ability to sleep.

In the employment law area, there are increasing studies about the effects of sleep deprivation on workers’ health and safety. Studies with respect to medical residents have suggested that the traditional long shifts of up to 36 hours on duty increase adverse outcomes for patients. Many hospitals are now adopting different schedules.

Many jurisdictions have laws governing where and when you can sleep, for instance banning sleeping in cars or parks. In Canada, the federal Criminal Code does not prohibit sleeping in your car, but you had better not do it if you have been drinking. There is a presumption that if you are sleeping in the driver’s seat you have care and control of the automobile, which is an alternative offence with the same penalties as drunk driving. Even if you are in a different seat, if you have access to the keys, you may be charged.

Sex while sleeping is illegal in Canada. The Supreme Court has held that a sleeping person cannot consent. Therefore, if you initiate sex while your partner is asleep, you are guilty of a sexual assault. This is true even if your partner indicated their desire for “wake up sex” prior to going to sleep. Consent to sexual activity must be given at the same time as the sexual activity. This is so because everyone is entitled to change their mind, even if they are asleep.

TAKEAWAYS

  • Unpopular or silly laws are often disobeyed which erodes the respect for the administration of justice.
  • Protests against unpopular laws often lead to important legal reforms.
  • Examples of that include abortion rates, marijuana use, and medically assisted dying.
  • We are currently seeing the process underway with respect to Canada’s prostitution laws, which are transforming from victim blaming (charging the prostitutes) to charging the purchasers of services whose conduct perpetuates the abuse of these women.
  • Will other street drugs be next?

WHAT WEILERS LLP CAN DO TO HELP YOU

At Weilers LLP we do not advertise ourselves as experts in legal trivia, although our trivia team does extremely well at fundraisers for the Children’s Aid Foundation, winning often. Having lots of irrelevant information stored in your brain is good for something.

This talent is good for you. Our lawyers have the skill and ability to store a lot of valuable information about the law. If you need legal advice on almost any subject, one or more of the lawyers at Weilers LLP is likely to be able to assist you. Next time you have a legal problem, why not give us a call and see if we are the right lawyers for you?

Now excuse us, it is time for a nap.