R. v. G.F.: Consent to Sexual Activity, and the Capacity to Consent

In R. v. G.F., 2021 SCC 20, the Supreme Court of Canada (“SCC”) has considered and ruled upon the relationship between consent to sexual activity and the capacity to consent to sexual activity.

At its core, the SCC has ruled that being sober enough to consent to sexual activity and actually consenting are part and parcel.  A trial judge does not need to analyze consent and capacity separately or in any particular order.

The Supreme Court confirmed earlier jurisprudence that having the capacity to consent to sexual touching means that person must be capable of understanding four things.

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.

A trial judge convicted two people –  who were common law spouses – for sexually assaulting a 16 year-old on a camping trip.   At issue in that trial was: (a) whether the complainant was too drunk to consent, and (b) whether she actually did – in her mind – consent.  One of the accused’s gave evidence claiming that the complainant was consenting, and was not too drunk to do so.  The complainant, on the other hand, testified that she was extremely intoxicated and in fact never agreed to any of the sexual touching.  The trial judge accepted the complainant’s evidence and ruled that she did not legally consent on the basis that she was too drunk to do so.

The Ontario Court of Appeal (“ONCA”) had overturned the conviction and ordered a new trial.  The ONCA ruled that the trial judge should have first decided whether the complainant did actually consent, and then decided whether her level of intoxication “erased” that consent.  Because the trial judge joined the two issues: consent and capacity to consent into one analysis, the ONCA ruled he erred and a new trial was required.

But the majority for the Supreme Court of Canada has disagreed with the Ontario Court of Appeal, and overruled them.  The SCC has declared that what the trial judge did was acceptable.  This is because “being sober enough to consent” is required for a person to actually consent.  Now, there are certain factors that would vitiate, or “erase” a person’s subjective actual consent.  For example, threats: a person may subjectively, in their mind, agree to sexual activity.  If a judge finds that they only agreed to the sex because their sexual partner was threatening them with violence if they did not consent, that consent if “erased”, and sexual assault is found.  But technically, the threat doesn’t mean the subjective consent never took place in the victim’s mind, just that it is legally invalid.

But according to the majority in G.F., “capacity to consent” is different.  Being “too drunk” to consent does not vitiate (or “erase”) actual subjective consent.  If a person was too drunk to consent, then by definition they did not consent.  There is nothing to “erase”: the consent just never formulated, because the person was incapable of formulating it.

Therefore, the trial judge in this case did not err.  A trial judge is not required to determine whether or not there was subjective consent and then decide whether drunkenness vitiates that consent.  It is appropriate to simply decide whether or not there was subjective consent.  If the reason the trial judge finds there was none, and that happens to be because the complainant was incapable of consenting due to intoxication, then that is an acceptable form of analysis.

The Supreme Court also rejected an argument that it would be impossible for a judge to find a person was both incapable of consenting and actively withholding consent.  In other words, the argument that the a trial judge must find one or the other.  The Court found that the two are not mutually exclusive.

This decision included other interesting comments from the court, but the effect on the capacity to consent issue is fairly straightforward:  the four factors are indeed how we determine whether somebody has the capacity to consent or not, and judges may simply consider the capacity to consent as part of the overall decision as to whether or not a person did subjectively consent.