Supreme Court addresses issue of consent in restoring sexual-assault convictions

OTTAWA — The Supreme Court of Canada has clarified the legal interpretation of consent in restoring the convictions of a common-law couple for sexually assaulting a 16-year-old girl during a camping trip.

In its ruling Friday, a majority of the top court said consent to sexual activity requires that the complainant be capable of agreeing and does actually consent.

On the camping trip over the 2013 Canada Day weekend, the girl was accompanied by her mother, stepfather and seven-year-old brother. Some of her mother’s co-workers also attended, including the common-law spouses.

The identities of those involved are protected by a publication ban.

At trial, the girl testified that she became intoxicated, fell asleep in the couple’s trailer, and woke up to one of them pulling down her pants and the pair engaging her in sexual activity.

The couple maintained she had consented to the activity, but the girl testified that she was so drunk she had no control of herself, faded in and out of consciousness and felt she could not have agreed to sex.

The common-law spouses were found guilty of sexual assault.

However, the Ontario Court of Appeal said the trial judge had made errors that necessitated setting aside the couple’s convictions and ordering a new trial.

The Appeal Court said the judge failed to identify the factors to consider when assessing whether being drunk deprived the complainant of her capacity to consent, and neglected to weigh the issue of consent, first and separately, from the issue of capacity.

In her reasons on behalf of six Supreme Court members, Justice Andromache Karakatsanis said the appeal gave the court an opportunity to clarify elements of consent.

“In my view, capacity and consent are inextricably joined,” she wrote. “Subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent.”

She added that for someone to be capable of providing consent, they must be able to understand four things:

— the physical act;

— that the act is sexual in nature;

— the specific identity of the complainant’s partner or partners; and 

— that they have the choice to refuse to participate in the sexual activity.

“The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors,” Karakatsanis wrote.

The trial judge’s reasons were not perfect, she said. “They did not have to be. The trial judge did not err in addressing consent and capacity together throughout his reasons.

“Capacity is a precondition to consent, and as such there was no need for the trial judge to consider capacity separately from or after the issue of factual consent.”

Karakatsanis also rejected the notion the trial judge equated any degree of intoxication with incapacity.

“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.”

This report by The Canadian Press was first published May 14, 2021. 

Jim Bronskill, The Canadian Press