Incapacity Precludes – not Vitiates – Consent in R. v. G.F.
Content Warning: Sexual assault and intoxication
The Supreme Court of Canada (“SCC”) has clarified that capacity is a precondition for consent in sexual assault offences in R v G.F., 2021 SCC 20 [G.F.]. As the two are “inextricably joined,” the majority ruled that trial judges are not required to consider the two issues in any particular order (G.F., paras 2-4). Combined with the majority’s strong endorsement of a contextual approach to reviewing a trial judge’s reasons, this decision will afford more flexibility to trial judges when assessing the complex issue of consent. This case comment reviews the majority’s reasons and discusses how this case picks up where Parliament left off when it last considered major amendments to the consent provisions of the Criminal Code of Canada, RSC 1985, c C46 [Code].
G.F. and R.B. were accused of sexually assaulting the complainant in 2013. G.F. and the complainant presented conflicting versions of the incident (G.F., para 8). R.B. did not testify, but the trial judge rejected G.F.’s testimony and accepted the complainant’s account, which was as follows: On the night in question, the complainant felt nauseated and went to lie down in the accused’s trailer after consuming 8 to 10 shots. G.F. had supplied her with most of the alcohol and continued to give her more once inside the trailer. She vomited multiple times and lost consciousness. She woke up as she felt her pants being pulled down. The touching progressed from there. In her disoriented state, the complainant repeatedly asked G.F. and R.B. to stop. She testified to feeling out of control and unable to make a choice. She tired of trying to push them away and eventually “just went along with it,” until passing out (G.F., para 9).
At trial (R v G.F., 2016 ONSC 3465), the Crown submitted that if the trial judge found only the complainant’s testimony was credible, then that would be sufficient to establish incapacity. Further, the Crown submitted that on the evidence, the complainant did not in fact consent to the sexual activity (G.F., para 12). The trial judge accepted both submissions and convicted both G.F. and R.B.
The Court of Appeal for Ontario (“ONCA”) ordered a new trial after finding that the trial judge had made two errors of law in his analysis of consent (R v G.F., 2019 ONCA 493 [G.F. 2019]). The first was that he failed to assess with sufficient detail whether the complainant’s level of intoxication met the threshold for incapacity (G.F. 2019, para 54). The second error was that the trial judge failed to treat consent and capacity as separate issues. According to the ONCA, where capacity and consent are both in question, the analysis must follow the two-step process described in R v Hutchinson, 2014 SCC 19 [Hutchinson] (G.F. 2019, paras 41-42).
Hutchinson addressed situations where the law deems that no consent was given despite evidence that the complainant did in fact consent. These conditions are set out in sections 265(3) and 273.1(2) of the Code and include things like consent induced by fraud or an abuse of trust. Per Hutchinson, the trial judge must start by asking whether the complainant did, in her own mind, agree to the sexual activity in question. If she did, or if there is a reasonable doubt that she did not, the trial judge then proceeds to the second step of asking whether that consent was vitiated by any of the factors under sections 265(3) or 273.1(2) (G.F. 2019, paras 41-42). The ONCA treated capacity as a condition that vitiates consent and observed that the trial judge did not follow the two-step sequence from Hutchinson. To the extent the trial judge’s reasons regarding consent could be extricated from his insufficient analysis of capacity, the court concluded that these reasons were not enough to sustain the convictions (G.F. 2019, para 55).
The SCC Decision
A majority of the SCC allowed the Crown’s appeal and restored the convictions. Writing for the majority, Justice Karakatsanis concluded that the trial judge had not erred in his assessment of consent and capacity, and that his reasons for the verdict were sufficient. Justices Rowe and Brown agreed with the majority regarding the first issue, but found the trial judge’s reasons regarding capacity to be insufficient (G.F., paras 116-18). Nevertheless, they determined that there was overwhelming evidence for the absence of consent to justify restoring the convictions (G.F., paras 120-23). Justice Côté dissented on both issues and would have dismissed the appeal (G.F., paras 129, 133-37, 146) .
Incapacity is not a vitiating factor
Parliament has defined consent as “the voluntary agreement of the complainant to engage in the sexual activity in question” under section 273.1(1) of the Code. The Crown must establish that there was non-consensual touching of a sexual nature between the accused and the complainant in order to make out the actus reus, or guilty act, of the offence. Consent at this stage of the inquiry is a subjective determination, concerned only with the complainant’s state of mind at the time the touching took place (G.F., para 25). Justice Karakatsanis refers to this as “subjective consent” (G.F., paras 29-32).
The majority held that capacity is a precondition to subjective consent. Central to Justice Karakatsanis’ analysis is her distinction between factors that prevent the formation of a voluntary agreement, and factors that vitiate that agreement (G.F., para 36). Preconditions are intrinsic to what subjective consent requires; where absent, there is no voluntary agreement, and therefore, no consent. For instance, subjective consent must be contemporaneous with the sexual activity in question. As such, one who is unconscious does not have the operating mind to form an agreement at the time the activity takes place (G.F., para 45). Therefore, consciousness is a precondition to subjective consent.
In contrast, vitiating factors are extrinsic to subjective consent. Where present, they render subjective consent legally ineffective where the complainant’s voluntary agreement to sexual activity was influenced by circumstances beyond the complainant’s control. These circumstances must bear the “reprehensible character of criminal acts” and are specifically enumerated under sections 265(3) and 273.1(2)(c) of the Code (G.F., para 39; internal citation omitted). Justice Karakatsanis refines the list of vitiating factors that the ONCA considered, excluding those conditions under section 273.1(2) that merely clarify what is required for subjective consent and have nothing to do with legally effective consent. She identifies a lack of capacity under section 273.1(2)(b) as one of these clarifying factors (G.F., para 44).
In the majority’s view, capacity is a precondition to consent and not a vitiating factor. To form a voluntary agreement to the sexual activity in question, the complainant must be capable of forming an agreement (G.F., para 43). The ONCA’s application of Hutchinson was thus misguided as the court assumed that capacity is a vitiating factor (G.F., paras 48-50). Justice Karakatsanis elaborates that the complainant must have the capacity to understand the three elements of the sexual activity in question: 1) the physical act, 2) its sexual nature, and 3) the specific identity of her partner (G.F., para 55). Additionally, to be truly voluntary, the complainant must be able to understand that “No” is an option (G.F., para 56). If the Crown proves beyond a reasonable doubt that any one of these four requirements is missing, then it can be established that the complainant was incapable of subjective consent (G.F., paras 57-58). The majority also clarified that there is no prescribed order for assessing consent and capacity as they are “inextricably connected” (G.F., para 51).
Read contextually, the trial judge’s reasons supported the verdict
A second issue on appeal was whether the trial judge’s reasons were sufficient. Justice Karakatsanis set out several principles to guide an appellate court’s review of a trial judge’s reasons:
- A court must not “finely parse the trial judge’s reasons in a search for error,” but rather read them functionally and contextually in light of the record as whole (G.F., para 69). The record as a whole includes the live issues before the trial judge, the parties’ evidence and submissions, and what actually happened at trial.
- An appellate court must ensure the reasons are both factually sufficient and legally sufficient. The former concerns what the trial judge decided and why. The latter engages the parties’ right to be equipped with enough information about how their case was decided to know whether to exercise their right of appeal. As long as the reasons together with the record provide an intelligible pathway from the issues to the verdict, both requirements will be met (G.F., paras 71-75).
- The judge may need to be more transparent when deciding more controversial points of law in order to satisfy legal sufficiency. For more routine matters, the presumption of correct application (i.e., that “the trial judge understands the basic principles of criminal law at issue in the trial”) will serve to fill in any gaps (G.F., para 75).
- Where appellants challenge the sufficiency of reasons on the basis of ambiguity, the appellate court must be rigorous in their assessment of whether multiple interpretations are indeed available, and if so, the extent of the ambiguity and its significance. Ultimately, the appellant must satisfy the court that the ambiguities remain fundamental even after a contextual reading of the reasons (G.F.. para 79).
Relying on these principles, Justice Karakatsanis writes that a functional and contextual reading of the trial reasons in this case shows that 1) the trial judge accepted the complainant’s testimony and rejected G.F.’s, and 2) the complainant’s testimony included specific details about extreme levels of intoxication, such as vomiting repeatedly, passing out, and feeling out of control during the sexual activity. The majority of the SCC concluded that when taken together, the trial judge’s conclusion on capacity was reasonably supported (G.F., para 86).
The four requirements for capacity to provide subjective consent that the majority set out in this decision are strongly reminiscent of an amendment proposed to section 273.1(2)(b) of Code in 2018 (G.F., paras 55-56). Senator Kim Pate’s amendment would have specified that a complainant is incapable of consent in circumstances where they are:
- unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,
- unable to understand that they have the choice to engage in the sexual activity in question or not, or,
- unable to affirmatively express agreement to the sexual activity in question by words or by active conduct.
Senator Pate proposed these amendments in response to a disturbing pattern where trial judges seemed unwilling to make findings of incapacity when presented with evidence short of total unconsciousness. A notorious example includes R v Al-Rawi, (9-10 February 2017) Halifax 2866665 (NSPC), where the trial judge’s statement that “clearly a drunk can consent” generated widespread public outrage.
The proposed amendment passed in the Senate but was rejected in the House of Commons, much to the chagrin of feminist legal scholars and advocacy groups. The former Minister of Justice, Jody Wilson Raybould, justified the decision on the grounds that more study was required to understand the potential impact that the amendment would have on the courts. It is interesting, then, that the SCC majority in G.F. established the four requirements for capacity without much ado. This is a welcome development. Parliament’s overabundance of caution three years ago underserved the interests of justice for complainants in sexual assault cases.
This decision also offers points of guidance on the treatment of capacity beyond the four requirements. For one, Justice Karakatsanis recognizes that capacity and the ability to withhold agreement are separate issues (G.F., paras 61-62). She explains that capacity requires a higher level of understanding that satisfies all four of the requirements necessary to provide subjective consent. The ability to withhold agreement, however, can be specific to one factor; an express lack of agreement to that one factor is valid even if the complainant does not have the operating mind to understand the other requirements for capacity. For example, a child or a complainant with a developmental impairment may still be able to reject being touched without necessarily being aware of the sexual nature of that touching (G.F., para 62). Justice Karakatsanis’ distinction is thus important from a critical disability rights perspective. As well, the majority rejected the respondents’ argument that the complainant’s recollection of the sexual activity belied her claim of incapacity. As Justice Karakatsanis points out, the question of capacity goes to the state of the complainant’s mind at the time of the sexual activity in question, not her ability to remember what happened after the fact (G.F., para 65).