Sexual Assault Law in the Supreme Court – R v. GF
What role does alcohol play in assessing consent? The Supreme Court of Canada (SCC) recently explored this issue in R v GF.
In R v GF, 2021 SCC 20, the SCC considered the relationship between consent and the capacity to consent to sexual activity. Ultimately, the SCC ruled that the capacity to consent to sexual activity and actual consent do not need to be compartmentalized. Capacity is simply a precondition of consent.
The Facts in R v GF
The accused couple (G.F. and R.B.) was found guilty of sexually assaulting C.R. while on a camping trip. On the final night, C.R.’s mother arranged to have C.R. sleep in the accused couple’s trailer. That night that the two accused and C.R. engaged in sexual activity.
All parties agreed that the sexual activity happened. However, they disagreed on whether C.R. consented to it. C.R. said she drank around 8 to 10 shots and did not consent. G.F. said C.R. had a beer and two half-ounce shots and did consent.
The trial judge believed C.R. and disbelieved G.F. He found that the sexual activity occurred while she was too drunk to consent and that she did not consent.
The Court of Appeal’s Response
The Court of Appeal ordered a new trial because the trial judge erred on two grounds:
- He did not explain why he found C.R. was too drunk to give consent; and
- He should have considered the issue of consent separately from the issue of capacity.
In his decision, the trial judge concluded:
 Section 273.1(2)(b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to the activity. This applies in instances where a complainant is intoxicated.
 Accordingly, I find the two accused guilty of sexual assault as charged.
Because the trial judge did not assess at what point C.R. would have been too drunk to give consent, the Court of Appeal found he misleadingly suggested that any level of intoxication is enough to negate consent.
The Court of Appeal also held that the consent and capacity analysis should be separate. Thus, the trial judge should have first asked whether C.R. consented to the sexual activity, then asked whether her level of intoxication invalidated the consent.
The Supreme Court of Canada Finds Capacity is a Precondition to Consent
Karakatsanis J., for the majority of the SCC, overturned the Court of Appeal and reinstated the convictions. While the Court of Appeal looked at alcohol and incapacity as factors that render consent ineffective, the SCC rejected the idea that a person can consent but have his or her consent be ineffective due to alcohol or incapacity. As a matter of logic, a person must be capable of consenting to provide consent.
The SCC outlined a four-part test for when a person is capable of consent. The person must be capable of understanding all of the following:
- the physical act;
- the sexual nature of the act;
- the identity of the sexual partner(s); and
- that he or she may refuse to participate.
If the Crown proves the person was incapable of understanding any one of the above beyond a reasonable doubt, the complainant is incapable of consent, and therefore did not consent.
On the issue of the trial judge’s reasons, the SCC reiterated that an appellate court only needs to understand the factual basis for the decision. Poorly expressed reasons did not give rise to an appeal. In this case, while it would have been preferable for the trial judge to clearly identify what aspect of consent he was referring to, his failure to do so was not an error.
What Does This Mean For Sexual Assault Law in Canada?
The R v GF ruling has two implications for sexual assault law in Canada. First, consent and capacity are essentially one concept, where capacity is a precondition to consent. Second, a trial judge does not need to give descriptive reasons about consent and capacity as long as the factual basis for the decision is clear from the record.
Voyeurism was added to the Criminal Code in 2005 as a new criminal offence, under s.162(1). The offence is committed when an individual secretly observes or records another person under circumstances where that person had a reasonable expectation of privacy. The individual being recorded must also be in a location where they can reasonably be expected to be nude, they are nude, or the recording is for a sexual purpose.
The Jarvis Case
Ryan Jarvis was a high school English teacher charged with voyeurism in 2011. He used a camera concealed within a pen to record the upper bodies, breasts, and faces of female students in classrooms and hallways of their Ontario school. These students were not aware that their teacher recorded them, and they did not consent to being recorded in this way.
Mr. Jarvis admitted to surreptitiously recording female students but argued that they had no reasonable expectation of privacy within the school. He also submitted that the recordings were not for a sexual purpose. The trial judge found that the students did have a reasonable expectation of privacy, but Mr. Jarvis was acquitted because the trial judge was not satisfied beyond a reasonable doubt that the recordings were made for a sexual purpose. The judge thought the recordings were likely made for a sexual purpose, but he could not rule out that there were other possible purposes that could be inferred.
The Court of Appeal upheld Mr. Jarvis’ acquittal, but reversed their reasons from that of the trial judge. They found Mr. Jarvis had recorded the students for a sexual purpose and no other purpose was suggested by Mr. Jarvis’ defence at trial. However, they found that the students were not in circumstances that gave rise to a reasonable expectation of privacy as they were in a public place with security cameras recording them. One judge at the Court of Appeal dissented. Huscroft JA would have entered a conviction on the basis that all elements of the offence were proven.
The Court of Appeal dissent allowed Crown to appeal the decision once more, to the Supreme Court of Canada in R v Jarvis 2019 SCC 10. The central issue at the Supreme Court of Canada was whether the circumstances gave rise to the students’ reasonable expectation of privacy to not be observed or recorded in a manner that falls under the criminal voyeurism charge.
What are the Circumstances that Give Rise to a Reasonable Expectation of Privacy?
Mr. Jarvis’ counsel submitted that the circumstances that give rise to a reasonable expectation of privacy should be the circumstances in which a person has a reasonable expectation that they will not be observed by others. They made no distinction between observations and recordings and did not include other factors in their privacy analysis.
Crown, by contrast, submitted that there should be a broader understanding of the reasonable expectation of privacy. This would require a contextual, fact-based analysis that considered more than just the private nature of the location where the observation or recording took place.
Chief Justice Wagner found the Crown submissions more compelling. He defined the circumstances that give rise to a reasonable expectation of privacy in a criminal voyeurism case as “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” Therefore, an individual’s reasonable expectation of privacy in a voyeurism case is very fact-dependent.
This definition does not create an all-or-nothing conceptualization of privacy, nor does it remove all reasonable expectations of privacy when an individual is in a public or semi-public space. Instead, a variety of factors may be considered to determine whether someone would have a reasonable expectation of privacy with respect to the type of recording or observation that they were subject to. These factors include the location, subject matter, and manner of observation or recording, as well as the relationship between the parties and whether there are formal rules or policies that contribute to the level of expected privacy.
Wagner CJ provided multiple examples that showed why an individual would not immediately lose all expectations of privacy once they leave the confines of their shuttered home. For example, people have an expectation that others in a communal changing room may observe them in various stages of undress, but not that someone would have a hidden camera recording them in that change room. Additionally, someone on a public bus would expect to be observed or recorded in the background of someone’s image, yet they would retain their expectation of privacy from upskirt photos, or other revealing and sexual images.
Classroom Expectations of Privacy
Wagner CJ found that the students were recorded in circumstances that gave rise to a reasonable expectation of privacy. Although the school did have security cameras that recorded them daily, these cameras were very different than the hidden camera technology used in Mr. Jarvis’ pen. This pen was pinpointed to record female students and their cleavage without their knowledge. While students may understand that they could be recorded from a distance for security purposes, there is no reason for them to expect the images to be intrusive or for teachers to have access to such recordings.
Mr. Jarvis also held a position of trust as a teacher in a high school. His responsibility toward his students provided an additional expectation that he would not breach their privacy and subject them to such recordings. Additionally, a formal school board policy prohibited teachers from making any recordings of students. Wagner CJ found that this policy was relevant in showing what the formal rules and informal norms are in a school environment.
Three justices dissented from the Wagner CJ’s majority in how the circumstances giving rise to a reasonable expectation of privacy should be defined. Rowe J would have limited the multi-factored analysis to those that define the offence. Factors such as the relationship between the parties should only be relevant for sentencing.
Rowe J went on to say that “sexual offences are designed to protect the personal autonomy and sexual integrity of the individual.” As such, Rowe J would have created a two-step test to determine whether the circumstances gave rise to a reasonable expectation of privacy:
- Did the surreptitious observation or recording diminish the subject’s ability to maintain control over their image?
- And if so, did this type of observation or recording infringe the sexual integrity of the subject?
If these two questions were answered in the affirmative, then the subject had a reasonable expectation of privacy from such observation or recording.
The Supreme Court of Canada unanimously concluded that the female students had a reasonable expectation of privacy from Mr. Jarvis’ surreptitious recordings. There was no question whether the recordings were made for a sexual purpose at this Court. Mr. Jarvis was convicted of voyeurism and the Court remitted his sentencing back to the trial courts.
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Jun 18, 2019
Internet child luring under section 172.1 of the Criminal Code is the act of an adult communicating with someone online that they believe is under the age of eighteen. These communications result in the adult attempting to meet with the supposed child offline, for a sexual purpose.
This child charge comes with severe penalties. A conviction for internet child luring includes a requirement for the convicted person to register as a sexual offender for the rest of their life. Additionally, child luring charges have a mandatory minimum sentence of six months in jail. The maximum sentence that can be imposed is 14 years’ incarceration.
Police have many tactics to find those who attempt to lure children. One such technique is to pose as a child on social media platforms and communicate with the adults who contact them. When the adult attempts to meet with the supposed child offline, the police arrest the adult ‘in the act.’
Recently, questions were raised in R v Mills 2019 SCC 22 about whether the online communications between an adult and the supposed child could be presented in court without prior judicial authorization.
Mills’ Child Luring Case Experience
Mills was arrested for internet child luring in 2012 after communicating with what he thought was a 14-year-old girl named Leann. They messaged on Facebook for two months until he arranged to meet with her in person. Their conversations included sexually suggestive messages and explicit photos that indicated Mills had a sexual intention.
But that 14-year-old girl was actually a police officer. The officer screen-captured all of the messages between Mills and the officer’s fictional alias, Leann, for the investigation. Those messages would prove pivotal to the prosecution. If those messages were admissible in Court, then they likely proved that Mills had a sexual purpose in wanting to meet.
Section 8 of the Canadian Charter of Rights and Freedoms provides a right against unreasonable search and seizure. Mills argued there was a reasonable expectation of privacy to his private communications and that expectation of privacy was breached without a judicially-authorized warrant, which was not obtained in this police sting.
At trial, the Facebook messages were deemed “private communications” that were intercepted by the police without a warrant. The use of a screen-capture software to capture a record of the communications was an additional seizure of the communications that also required authorization. The trial Court found that the use of a username and password on Facebook indicated that Mills had an expectation of privacy in his communications, albeit limited by the officer’s alias. However, the Court exercised its discretion to admit the evidence despite the breach of Mills’ section 8 Charter rights and Mills was convicted.
The Court of Appeal upheld Mills’ conviction but found there had been no interception of the messages. The Court of Appeal found that the police were a party to the conversation and no judicial authorization was required if there was no interception. They also said Mills gave up any expectation of confidentiality when he voluntarily sent the messages to a stranger. Therefore, section 8 of the Charter was not infringed.
No Reasonable Expectation of Privacy in Online Communications
The Supreme Court unanimously upheld Mills’ conviction for child luring but there were substantial differences on their approaches to the privacy issue. Although the Justices differed in how they approached the issue of privacy and online communications, they all agreed that the conversations should be admitted in this case.
The majority decision of Justices Brown, Abella, and Gascon found that although Mills may have expected privacy in his conversations with Leann, it is unreasonable for adults to expect privacy in their online communications with children that they do not know. Online communication adds unpredictability, not privacy.
The Court noted there is a difference between conversations of adults and children who are familiar with each other, such as family, friends, professionals, and religious advisors, and those who are strangers such as in the case of Mills and Leann. This decision allows police agencies to continue their undercover sting operations to attract child lurers with fake profiles of children. The police are aware from the outset that the fictional child is a stranger to the adult and no reasonable expectation of privacy protects their conversations. No judicial authorization is required as there is no potential for a privacy breach.
Justices Karakatsanis and Wagner held there was no privacy breach for different reasons. They found there can be no reasonable expectation of privacy from the intended recipient of a message, even if that intended recipient is not who the sender expected they were. The sender cannot know if the stranger they communicate with is who they portray themselves as, due to the anonymity of the Internet. Additionally, the screen capture of the conversations was seen as a mere copy of the pre-existing written record and not subject to a prior judicial authorization.
Justice Moldaver agreed with both the majority decision of Brown, and Karakatsanis’ concurring reasons that there was no reasonable expectation of privacy. However, Justice Martin found the screen-capture of previously sent messages was a breach of Mills’ section 8 privacy rights. However, she would still have admitted the evidence despite the breach, as the breach did not bring the administration of justice into disrepute.
Sep 18, 2017
The law of sexual assault in Canada is complex and constantly changing. There are several stages of the prosecution of a sexual offence that require important decisions on the part of the accused that you should not make without the guidance of experienced counsel.
When you are initially charged with a sexual offence, there will be bail considerations and an opportunity for negotiations with the Crown. Ultimately, if you are not guilty, you may end up having to go to trial.
An experienced lawyer will help you decide in which level of court your particular sexual offence case should be heard, in order to provide the best chances for an acquittal. Depending on the age and relationship to you of the complainant, a preliminary inquiry may or may not be fruitful. There are a wide range of highly technical procedures available to the Crown that a good lawyer knows how to anticipate and oppose.
At the preliminary inquiry stage, you want a lawyer with experience applying for witnesses to be compelled to submit to cross examination, and opposing other evidentiary motions.
At the trial stage, you want a lawyer with experience making third-party records applications, making prior sexual history applications, challenging the admissibility of confessions, cross examination, and most importantly, a lawyer who is very familiar with the unique nuances between the elements of different sexual offences. Depending on which sexual offence you are charged with, there may be subtle defences available to you based on your actions and/or intentions.
If you are guilty and want to take responsibility for your charges, you will need a lawyer who is current on the recent and continuing developments in the sentencing law of sexual offences. The aggravating factors that may increase your sentence for a sexual offence can be misunderstood and misused by Crown. You need a lawyer who can protect you from any such injustice and highlight any mitigating factors in your case to the court. There are also special sentencing considerations for sexual offences that you don’t face for any other type of crime, especially if the complainant is a youth. There are mandatory minimum jail sentences in some cases, and you could face very strict conditions for up to life. You need a lawyer who has experience with these procedures to help you navigate the system if you want to plead guilty in order to secure the best possible sentence.
Regardless of whether you are guilty or innocent, if you are charged with a sexual offence including but not limited to sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, possession or distribution of child pornography, luring children, indecent exposure, voyeurism, human trafficking, or incest, you need an experienced lawyer with an expertise in this area of law to ensure you have the best opportunity for a good result.
If you have been charged with or are being investigated for a sexual offence, please don’t hesitate to contact us for a consultation.