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Consent and capacity do not have to be considered separately in sexual assault cases: Supreme Court

Majority finds that incapacity to consent prevents consent rather than vitiating it

Consent and capacity do not have to be considered separately in sexual assault cases: Supreme Court

Trial judges do not have to consider consent and capacity to consent separately in criminal cases, or to decide them in a particular order, the Supreme Court of Canada ruled today in a 6/2/1 decision.

In R. v. G.F., the majority of the Supreme Court agreed that capacity is a precondition to consent, and that incapacity prevents consent. Justice Suzanne Côté, who would have dismissed the appeal, including on the evidence, found that incapacity can vitiate consent rather than prevent it.

G.F. and R.B., a common-law couple, were charged with sexually assaulting a 16‑year‑old during a camping trip the teen was on with her family and her mother’s coworkers, including the respondents. The issue at trial was whether the teenager -- who had reportedly consumed between 8 and 10 shots of alcohol, most provided by G.F., and had gone to lie down in the respondents’ trailer after feeling nauseous -- had consented to sexual activity with the respondents.

The complainant and G.F. both testified and gave very different versions of events, with the complainant saying she had expressed her refusal to engage in sexual activity and that she was intoxicated to the point of passing out, while G.F. claimed the teen had not been as drunk as she claimed and had agreed to the sexual activity. The trial judge accepted the complainant’s evidence and convicted G.F. and R.B of sexual assault.

On appeal to the Court of Appeal for Ontario, the panel of judges agreed that the verdict was reasonable based on the evidence, but found that the trial judge had failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent, and also failed to consider the issue of consent first and separately from the issue of capacity.

The appellate court then ordered a new trial for the respondents, which the Crown appealed to the Supreme Court.

Defining consent and capacity

The Criminal Code defines consent as the voluntary agreement of a complainant to engage in the sexual activity in question.

In her majority reasons for judgement, Justice Andromache Karakatsanis enumerated the four factors someone must understand in order to have the capacity to consent to sexual activity:

— the physical act;

— that the act is sexual in nature;

— the specific identity of the complainant's partner or partners; and

— that they have the choice to refuse to participate in the sexual activity.

Consent and capacity are inseparable: majority

The majority in the case found that consent and the capacity to give consent are inseparable, and that consent to sexual activity requires someone to be capable of consenting before giving their consent. Trial judges don’t have to evaluate consent and capacity separately, or in any particular order, and in this case the majority found that the trial judge had not erred in finding the teenager was incapable of consenting and did not give her consent. The majority also found the trial judge did not err in addressing the two questions together in his reasons.

The intervener Criminal Lawyers’ Association of Ontario had argued that the question of capacity to consent should be raised later, if needed, says Chris Rudnicki of Rusonik, O’Connor, Robbins, Ross & Angelini, LLP in Toronto, who was co-counsel for the CLAO.

First, the trier of fact looks at whether the Crown has proven beyond a reasonable doubt that the complainant did not give consent; if that cannot be determined, the trier proceeds to the question of capacity.

“We see that as actually respecting the dignity of complainants more than the current model, because rather than looking at, ‘was she too drunk? Have they taken any drugs beforehand?’ if the trier of fact believes the complainant, they don't need to go any further,” and as a result finds that the actus reus of the offence is made out.

“In our view, only if the trial judge had a doubt about consent, then they would go to the next step” and look at capacity to consent. “Then, that may well be that the otherwise voluntary participation should be vitiated,” he says.

Preventing or vitiating consent

In her reasons, Justice Karakatsanis distinguished between consent being prevented and vitiated, or rendered ineffective, and found that incapacity prevents consent.

“The distinction between preventing subjective consent and rendering it ineffective is important, and the proposition that incapacity vitiates rather than prevents subjective consent must be rejected for three reasons,” she wrote.

“First, subjective consent requires a complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question, and it follows, as a matter of logic, that the complainant must be capable of forming such an agreement. Second, incapacity as a vitiating factor would be inconsistent with the structure of the Criminal Code, as incapacity under s. 273.1(2) (b) deprives the complainant of the ability to formulate a subjective agreement. Third, capacity as a precondition to subjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntary agreement to the sexual activity in question.”

Sufficiency of reasons

In concurring reasons, Justices Russell Brown and Malcolm Rowe found the trial judge did not provide sufficient reasons on the issue of the complainant’s capacity to consent, but agreed the convictions should be restored on the basis of the evidence that the complainant did not consent to sex.

“What has been implicit over the past six months to a year in the Supreme Court's decisions allowing appeals from the bench on sexual assault cases and restoring trial convictions overturned on appeal is made explicit in the majority judgment of Justice Karakatsanis,” says Rudnicki. “She says, … ‘absent errors of law, we don’t want to see these cases overturned on appeal.’ The majority would restrict the sufficiency of reasons analysis.”

The concurring judges, however, “take issue” with this, says Rudnicki. “I see Justices Brown and Rowe more broadly concerned about preserving the ability of the appellate courts to more closely scrutinize the trial  reasons, in order to ascertain the safety of the conviction, whereas the majority says, basically, ‘unless you can identify an articulable error of law, these convictions shouldn't be getting turned around.’”

In dissenting reasons, Justice Côté found that the trial judge provided insufficient reasons and erred in convicting the accused on the basis of the complainant’s incapacity without explaining the standard used to decide on the incapacity to consent and its application to the complainant’s evidence. She also concluded that incapacity vitiates rather than prevents consent.

Trial judges considering consent and capacity to consent at the same time is “a troubling proposition,” says Rudnicki. “These reasons need to be clean.” A convicted person “ought to know precisely the basis” on which he is being sent to prison, so that they can challenge that finding on appeal.

A spokesman for the Ministry of the Attorney General of Ontario declined a request for comment.

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