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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SEXUAL ASSAULT-CAPACITY TO CONSENT

In R. v. G.F., 2021 SCC 20, May 14, 2021, the accused were convicted of the offence of sexual assault.  The primary issue at trial was whether the complainant lacked the capacity to consent to the sexual activity that occurred because of intoxication.

In convicting the accused, the trial judge concluded that the complainant “did not consent to the sexual activity”.

On appeal, the Ontario Court of Appeal ordered a new trial. It concluded that the trial judge erred in failing “to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent” and in failing “to consider the issue of consent first and separately from the issue of capacity” (at paragraph 17).

The Crown appealed to the Supreme Court of Canada. 

The Issues:

The Supreme Court indicated that the appeal raised, among others, the following issues:

1.      Did the trial judge err in his assessment of consent and capacity?

2.      Were the trial judge’s reasons sufficient?

The Supreme Court’s Decision:

The Supreme Court allowed the appeal and reinstated the convictions.

Consent and Capacity:

The Supreme Court indicated that “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. In other words, 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 the complainant was capable of consenting and whether the complainant did agree to the sexual activity in question, the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity” (at paragraph 24).

The Supreme Court also indicated that “capacity must be understood as a precondition to subjective consent as a matter of logic. Subjective consent requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question…If the Crown proves beyond a reasonable doubt that the complainant did not have an operating mind capable of consenting, or did not agree to the sexual activity in question, then the Crown has proven a lack of subjective consent and the actus reus is established” (at paragraphs 43 and 47).

The Supreme Court held that “for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things” (at paragraph 57):

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.

Appellate Review of Trial Reasons:

Interestingly, the Supreme Court took the opportunity provided by this appeal to be very critical of Courts of Appeal for reversing trial judgments based upon assessments of the evidence. The Court indicated that “[d]espite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are 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. Frequently, it is the findings of credibility that are challenged…In three recent appeals as of right, this Court reinstated sexual assault convictions that were set aside on appeal, endorsing the reasons of a dissenting justice” (at paragraphs 76 and 77).