Focus On

CRIMINAL CODE OFFENCES - Sexual assault - Consent

Friday, July 12, 2019 @ 6:25 AM  

Lexis Advance® Quicklaw®
Appeal by GF and RB from their convictions for sexual assault. The appellants, common law spouses, were co-workers of the complainant’s mother. The complainant, 16-years-old at the time of the incident, testified that during a camping trip with the appellants, she fell asleep in the appellants’ trailer, while intoxicated, and woke up to find both appellants engaging in sexual activity with her. She testified that throughout the incident she was in and out of consciousness. The appellants maintained the complainant was alert and consented to the sexual activity. The complainant estimated the appellants gave her eight to 10 shots of alcohol that evening. A toxicology report detected no alcohol in the complainant’s blood 24 hours after the incident. The trial judge concluded the appellants forced the complainant into having non-consensual sex.

HELD: Appeal allowed; new trial ordered. The trial judge did not identify the relevant factors to be considered when assessing whether the complainant had the capacity to consent to sexual activity. He failed to assess whether the degree of impairment by alcohol was such that the complainant was incapable of consenting to sexual activity. His reasons could be read as equating any degree of impairment by alcohol with incapacity, which was an error of law. The trial judge failed to, first and separately, consider the issue of consent apart from the issue of capacity, which was also an error of law. It was not clear from the trial judge’s reasons if he found the complainant did not consent, regardless of her capacity.

R. v. G.F., [2019] O.J. No. 3106, Ontario Court of Appeal, D. Watt, G.I. Pardu and I.V.B. Nordheimer JJ.A., June 14, 2019. Digest No. TLD-July82019013