Supreme Court of Canada: The Bench of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., clarified the link between consent and capacity to consent. The Bench stated,
“Consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. Trial Judges are under no obligation to evaluate consent and capacity separately or in any particular order.”
F and B were charged with sexually assaulting the 16-year-old complainant during a camping trip. The issue at trial was whether the complainant, who had consumed alcohol, had consented to the sexual activity with F and B. The complainant and F both testified and presented diametrically opposed versions of events; B did not testify. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication, and also that the complainant had not agreed to the sexual activity. F and B submitted that the complainant was not credible and that she had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The Trial judge accepted the complainant’s evidence and convicted F and B of sexual assault.
However, the Appellate Court concluded that the Trial judge failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent, and failed to consider the issue of consent first and separately from the issue of capacity. As a result, the Court of Appeal concluded that a new trial was necessary for both F and B.
Consent and the capacity to give consent
The Supreme Court opined that consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. The Bench said that the Trial judges were under no obligation to evaluate consent and capacity separately or in any particular order as the complainant did not agree to the sexual activity in question, and that the trial judge’s blending of consent and capacity revealed neither an error in law nor insufficient reasons. As where a complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. The Bench clarified,
“The capacity to consent is a necessary but not sufficient precondition to the complainant’s subjective consent.”
Thus, when a trial engages both the issues of whether a complainant was capable of consenting and whether they did agree to the sexual activity in question, they both go to the complainant’s subjective consent to sexual activity. Where the complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent.
“Capacity to consent requires that the complainant have an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they have a choice of whether or not to engage in the sexual activity in question.”
Appellate Courts not to Parse Trial Judge’s Reasons in a Search for Error
The Bench reminded the Appellate Court that the its task is not to finely parse Trial judge’s reasons in a search for error, but rather to assess whether the reasons, read in context and as a whole in light of the live issues at Trial, explain what the Trial judge decided and why they decided that way in a manner that permits effective appellate review. Expressing its disappointment, the Bench stated that despite clear guidance since R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, Appellate Courts had continue to scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials were being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the Trial judge.
Four Requirements for Capacity
The Four Requirements for Capacity for a complainant to be capable of providing subjective consent to sexual activity, is that they must be capable of understanding four things:
1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.
Since subjective consent requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question: Capacity to consent requires that the complainant be capable of understanding what is required for subjective consent — no more, no less.
Consequently, rejecting the respondents’ argument that the complainant’s claim of incapacity was belied by her thorough recollection of the sexual activity, the Bench explained,
“The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.”
Hence, the Bench held that the Trial judge explained what he found and why, and what he found was that the respondents committed a sexual assault upon the extremely intoxicated complainant, who was passed out when the assault commenced. Therefore, the convictions were safe and the Trial judge made no error. The Appellate Court order was set aside and the respondents’ convictions were restored.[Her Majesty The Queen v. G.F., 2021 SCC OnLine Can SC 2, decided on 14-05-2021]
Kamini Sharma, Editorial Assistant has reported this brief.