A recent decision by a Nova Scotia provincial court judge to acquit a taxi cab driver of sexual assault charges has raised the "thorny issue" of capacity to give consent — and the Crown will appeal.
Jennifer MacLellan, a senior Crown Attorney for the Nova Scotia Public Prosecution Service — Appeals Branch, in Halifax, outlined the six specific grounds of appeal in the case for Legal Feeds.
The first ground for appeal is that the judge erred in law in holding that the Crown had adduced no evidence of lack of consent on the part of the complainant.
“The Crown’s position will be that significant evidence was produced,” MacLellan told Legal Feeds, even if that evidence was circumstantial rather than direct.
Second, the Crown maintains, the judge erred in law by engaging in speculation on the issue of consent rather than drawing inferences from the facts proven in evidence; third, he erred by failing to give proper legal effect to the facts found by him; fourth, he erred in his interpretation and application of the test for capacity to consent; fifth, he erred by failing to direct himself on the provision of s. 273.1 of the Criminal Code; and sixth, he erred by failing to determine whether the accused had taken all reasonable steps to ascertain whether the complainant was consenting.
“While the issue of consent is a thorny issue in many cases of this sort, we certainly take the position that in this case it was clear that there was a lack of consent, and there was [sufficient] evidence presented … that the trial judge should have come to that conclusion,” MacLellan says.
This evidence included the complainant’s level of intoxication, the location of the alleged assault, which was not en route from the bar to the complainant’s home, and the timeframe involved: about 11 minutes from the time the complainant entered the taxi cab until she was found by a police officer in another part of the city.
The Crown will ask Nova Scotia’s appellate court to find the accused guilty on the evidence produced at trial, or, alternatively, to allow the appeal and order a new trial, says MacLellan.
Under s. 273.1 (2)(b) of the Criminal Code, no consent to sexual activity is obtained where “the complainant is incapable of consenting to the activity.”
“A person would be incapable of giving consent if she is unconscious, or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself,” Judge Gregory Lenehan of the Provincial Court of Nova Scotia said in his oral reasons for judgement. “This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent."
The judge also made reference to the complainant’s lack of memory of the events of that night, “because she was drunk.”
Lise Gotell, professor and vice Dean of the Faculty of Arts at the University of Alberta, told Legal Feeds that someone intoxicated enough to have a memory blackout is in a “Catch 22 situation.”
“It’s difficult to get convictions in these [sexual assault] cases because of lack of memory,” says Gotell, whose research area is sexual assault law. She also cites Statistics Canada’s Criminal Victimization in Canada 2014 report, which added a survey question for that year asking whether a victim was unable to consent to sexual activity because, for example, he or she was drugged, intoxicated, manipulated or forced in ways other than physically.
“This type of sexual assault represented 9 per cent of all sexual assaults reported by Canadians,” the Stats Can report stated, which would represent about 50,000 complainants.
In this case, the complainant “was at the point of lapsing into alcohol poisoning,” Gotell says. “She was so intoxicated that she was denied entry to a bar. How can you say that someone in that state was capable of giving consent?”
Gotell is also the national chair of the Women's Legal Education and Action Fund, and said that LEAF is preparing an application to intervene in the Nova Scotia Crown’s appeal of Judge Lenehan’s decision.
Carissima Mathen, an associate professor in the University of Ottawa’s Faculty of Law — Common Law Section, says she believes an appeal of the judge’s decision is “the appropriate route” to take in the case. And although Canada’s existing criminal law on sexual assault is strong, she says, the particular provision for capacity to consent, s. 273.1 (2)(b), “may be too sparse.” Many elements may inform capacity, Mathen told Legal Feeds, such as developmental disabilities, intoxication, or an inabiity to appreciate one's actions and the nature of the acts one may be engaged in.
“What would be helpful would be to have a case like this one go to the Supreme Court of Canada,” says the University of Alberta’s Gotell, “to provide clarity to this issue.”