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Sexual Assault: Capacity and Consent

By October 6, 2021No Comments

When it comes to sexual assault charges – What if the complainant consumes alcohol and/or drugs, and becomes too intoxicated to consent? How does a judge assess whether she consented and whether she had the capacity to consent at trial?

The Supreme Court has recently declared in the case of R v G.F., 2021 SCC 20, that trial judges do not have to consider issues of consent and capacity to consent separately, nor do they have to decide the issues in a particular order when reaching their verdict. Writing for the majority of the Supreme Court, Justice Karakatsanis further determined that capacity to consent is a precondition to consent, rather than merely vitiating it.

The sexual assault case of R v G.F.

In the sexual assault case of R v G.F., G.F. and his common-law partner, R.B., were convicted after trial of sexually assaulting a 16-year-old during a camping trip. The complainant was with her family and the respondents were her mother’s coworkers. The complainant described consuming between 8 and 10 shots of alcohol and had gone to lie down in the respondents’ trailer after feeling nauseous. The complainant testified that she was so intoxicated that she was at the point of passing out. She further testified that she did not consent to sexual activity. Conversely, G.F. testified that she had agreed to the sexual activity and was not as drunk as she claimed.

The Ontario Court of Appeal found that the conviction was reasonable based on the evidence. However, the appellate court ordered a new trial upon finding that the trial judge had failed to consider the issue of whether the complainant had consented to sexual activity first – and separately – from the issue of whether she had the capacity to consent. The appellate court also found that the trial judge had failed to identify the factors it considered when determining whether the complainant’s intoxication resulted in her being incapacitated to consent. The Crown then appealed the decision to the Supreme Court.

The majority of the Supreme Court found that the trial judge had not erred in finding that the complainant was incapable of consenting based on her level of intoxication. Nor did the trial judge err in addressing the two questions of whether the complainant consented and whether she had the capacity to consent together in his reasons. As such, the Supreme Court reversed the decision of the Ontario Court of Appeal and upheld G.F.’s conviction.

What is Consent and Capacity to Consent?

Consent has been previously defined under the Criminal Code of Canada as the voluntary agreement between the parties to engage in the sexual activity in question.

The definition of capacity to consent to sexual activity was revisited in R v. G.F.. Justice Karakatsanis set out four factors that a complainant must understand:

  • The physical act;
  • The fact that the act is sexual in nature;
  • The identity of the complainant’s partner(s); and
  • That they have the choice to refuse to participate in the sexual activity.

If the complainant does not understand one or more of these factors, and their testimony is believed, they will not have capacity to consent to the sexual activity.

Is Capacity is a Prerequisite to Consent?

The majority in G.F. held that consent requires the complainant to be capable of consenting before they can give their consent. The concepts are thus “inseparable,” as you cannot have one without the other.

Rather than merely vitiating consent (or rendering it ineffective), the majority in G.F. held that incapacity prevents consent from ever occurring. Capacity is a prerequisite to consent, as consent requires a complainant to consciously agree to the sexual activity. The concepts of capacity and consent are thus “inextricably linked,” since consent requires the voluntary agreement of the parties throughout and to the sexual activity in question.

Since these concepts are linked, the majority of the Supreme Court found that it was not an error for the trial judge to consider the issues in a particular order and disagreed that the question of whether the complainant consented to the sexual activity should be considered first, before moving onto the issue of whether she had the capacity to consent.

Sufficiency of Reasons: Is There Safety in a Conviction?

The concurring reasons of Justices Brown and Rowe found that the trial judges did not provide sufficient reasons on the issue of the complainant’s capacity to consent. Nevertheless, they agreed that the convictions should be upheld.

The decision has attracted scrutiny, including from the Criminal Lawyers’ Association of Ontario. The question is, will the Supreme Court ever reverse a conviction for insufficiency of reasons – or is a respondent required identify an error of law to succeed in their appeal? The concern arising from the majority and concurring reasons is that, unless there is an error of law, the Supreme Court will preserve the conviction rather than scrutinize the reasons of trial courts and overturn as a result.

Bottom Line: In the Case of R v G.F.

Capacity is a precondition to consent; if the complainant consumes too much alcohol and/or drugs and becomes incapacitated, incapacity prevents consent from occurring. Moreover, appellate lawyers should take care to articulate a viable error of law outside of sufficiency of reasons if they hope to succeed at the Supreme Court.


What to do if you are charged with Sexual Assault?


If you find yourself charged with sexual assault, contact the Roulston Urquhart Criminal Defence team right away. 

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