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.
Jul 18, 2017
Filkow Law welcomes its newest criminal defence lawyer, Jacqueline Halliburn.
Ms. Halliburn comes to us from Thompson, Manitoba, the crime capital of Canada, where she spent the last three years as a Crown Prosecutor.
She specialized in the prosecution of child abuse matters and serious violent crime. Accordingly, Ms. Halliburn knows exactly how the Crown thinks when they are prosecuting violent crime, particularly sexual assault, child abuse and pornography, and young offenders.
With her extensive experience in negotiations, bail and sentencing hearings, and trials at all court levels, we are excited to have her bring her unique perspective to the firm. If you have a case that falls under Ms. Halliburn’s specializations please contact us.
Feb 07, 2017
Sexual assault is one of the most serious charges in the Criminal Code, and the area of law is also one of the most complex.
Over the last few decades, our society has transformed in how it understands and responds to allegations of sexual assault and similar offences, and the legal process in cases of sex assault has been at the centre of a series of recent high-profile news stories in Canada and abroad. Canadian criminal law has transformed, too — and for good reason, because the law used to allow too many old, unproven myths and gender stereotypes.
The law has special rules and procedures meant to address the unique nature of these charges, and society’s interest in balancing fairness for complainants (which is what we call the alleged victim during the legal process) with fairness to the accused.
What is a “sexual assault,” in law?
There are a number of different charges in the Criminal Code that cover different types of specific conduct, but at its core a sexual assault, in law, is an assault (usually touching of some kind) that is sexual in nature and to which the complainant did not consent. Each of these concepts – assault, sexual nature, and consent – means something different in Canadian criminal law than it might in everyday life.
Each case is different, but here are some of the more common scenarios along with examples of the kinds of special rules and procedures that are involved:
In some cases the issue is whether the events in question ever took place. This is more common with historic sex assaults (where the alleged event took place a long time ago) or where the complainant was a child at the time of the alleged events. The law now makes it clear that corroboration – outside evidence that confirms what the complainant says – is not required for a conviction, so the case turns on the complainant’s version of events. Cross-examination of children is a specialised skill on its own, and in cases like this the Crown often uses special procedures to try to have the complainant’s video-taped statements to police used as evidence at trial instead of having the complainant re-tell their whole story when they take the stand to testify in court.
Sometimes nobody disputes that an assault took place, but the issue is who committed the assault. In these situations the police and Crown might gather and use DNA and other types of forensic evidence, which brings with it its own complex body of law about how it can be collected and interpreted in court.
Often, when nobody disputes that the events happened between the particular people, the issue is whether the complainant really did consent or not. If they did consent (as the law defines it), then it is not an assault as far as the law is concerned. This is one of the more difficult scenarios to navigate in the courtroom because there were almost never other people around who can testify about what happened, so it comes down to the complainant’s story versus that of the accused. This is also one of the topics the law has evolved to address differently than it used to. For example, except in rare cases, the complainant’s sexual history can’t be made part of the trial and defence lawyers can’t use it to argue that a complainant was more likely to have consented because they consented to other acts in the past, or that the complainant is generally less worthy of belief.
Another scenario is when the complainant did not consent to the sexual activity but the accused person mistakenly believed that they did. This raises the defence of honest but mistaken belief in consent. Again, though, this is not as simple as just arguing that the accused really did believe it – rather, the law requires evidence that the accused person’s belief was reasonable and that they took real steps to make sure the complainant was consenting. The accused can’t have been reckless or wilfully blind (once again, terms with special meanings in the law) about what the complainant wanted. The law also says the accused can’t argue that their own intoxication was what made them make the mistake.
No matter the facts of the particular case, sexual assault charges have serious consequences for an accused person. If you’re being investigated for or have been charged with a sexual assault or a related offence, it is highly recommended that you contact an experienced criminal defence lawyer to protect your interests throughout the process.