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CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault – Consent

Friday, May 14, 2021 @ 2:40 PM  


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Appeal by the Crown from a decision of the Ontario Court of Appeal that allowed GF and RB’s appeal from their convictions for sexual assault and ordered a new trial. The complainant testified that when she was 16 years old, GF and RB, co-workers of her mother, sexually assaulted her on the last night of a camping trip. She had consumed between eight and 10 shots of alcohol, provided by GF. She testified she passed out in the respondents’ trailer and woke up to find RB performing cunnilingus on her while GF held her down. GF proceeded to have sexual intercourse with her. The complainant testified she resisted and then acquiesced as she felt she did not have any choice. GF testified the complainant was not very intoxicated and that he, RB and the complainant had participated in consensual oral and vaginal intercourse. He indicated he asked the complainant at least seven times for assurances she consented to the sexual activity. The trial judge accepted the complainant’s evidence and found she had not consented to the sexual activity. The Court of Appeal found the trial judge failed to identify the relevant factors 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.

HELD: Appeal allowed; convictions restored. The capacity to consent was a necessary, but not sufficient, precondition to the complainant’s subjective consent. Capacity to consent required the complainant have an operating mind capable of understanding the physical acts, its sexual nature, and the specific identity of their partner and that they have a choice whether or not to engage in the sexual activity in question. When a trial raised the issues of whether a complainant was capable of consenting and whether the complainant agreed to the sexual activity in question, the trial judge was not necessarily required to address them separately or in any particular order as they both went to the complainant’s subjective consent to sexual activity. Only if subjective consent existed or there was a reasonable doubt as to subjective consent, did a trial judge need to ask whether the consent was vitiated. The trial judge did not err in his treatment of consent. It was open to him to find both that the complainant was incapable of consenting and did not agree to the sexual activity. Both findings went to a lack of subjective consent and did not need to be reconciled with each other or approached in any particular order. The trial judge’s reasons were factually and legally sufficient. They permitted the aggrieved parties to understand what he decided and why and permitted appellate review. The Court of Appeal did not conduct a functional and contextual reading of the trial judge’s reasons. In the context of the trial, the trial judge’s reasons should not be read as equating any degree of intoxication with incapacity. The trial judge did not err by blending his assessment of consent and capacity. Concurring and dissenting reasons were provided.

R. v. G.F., [2021] S.C.J. No. 20, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., May 14, 2021. Digest No. TLD-May102021011-SCC