The relationship between consent and the capacity to give consent in a sexual offence case
July 30, 2021
R v GF
2021 SCC 20
Supreme Court of Canada
Wagner CJ; Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, SCJJ
May 14, 2021
Reported by Faith Wanjiku
Criminal Law – offences – sexual assault – consent-capacity to consent- relationship between consent and capacity to consent in a sexual assault case- legal analysis of consent and capacity to consent in a sexual assault case -what was the relationship between consent and the capacity to give consent and whether the two could be analysed separately by a court deciding on sexual offence case.
Criminal Law – offences – sexual assault – consent- subjective consent -what was the scope of subjective consent in cases of sexual offences?
The respondent and RB were charged with sexually assaulting a 16‑year‑old during a camping trip. The issue at trial was whether the teenager who had consumed alcohol, had consented to sexual activity with the two adults. The victim and the respondent both testified and presented opposite versions of events. RB did not testify. The Crown prosecutor argued that the teenager’s evidence clearly established incapacity due to intoxication and also that she had not agreed to the sexual activity. The respondent and RB claimed that the 16-year-old had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The trial court convicted the respondent and RB of sexual assault.
The respondent and RB appealed the convictions to the Court of Appeal for Ontario. The Court of Appeal agreed that based on the evidence, the verdict was reasonable. However, the Court of Appeal said the trial court should have explained the factors it considered when assessing if the teenager was too intoxicated to consent. The Court of Appeal also found that the trial court failed to consider consent first and independently from the question of capacity to consent. As a result, the Court of Appeal concluded that a new trial was necessary for both the respondent and RB. The Crown appealed to the Supreme Court of Canada.
i What was the relationship between consent and the capacity to give consent and whether the two could be analysed independent of each other while a court was deciding a sexual offence case?
ii What was the scope of subjective consenting cases of sexual offences?
Relevant provisions of the law
Criminal Code of Canada
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Section 273.1 (1)-Meaning of consent
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(1.1) Consent must be present at the time the sexual activity in question takes place.
No consent obtained
(2) For the purpose of subsection
(1), no consent is obtained if
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Held by majority
- Consent and the capacity to give consent were inextricably joined, as subjective consent to sexual activity required both that the complainant be capable of consenting and did, in fact, consent. Trial courts were under no obligation to evaluate consent and capacity separately or in any particular order. In the present case, it was open to the trial court to find both that the complainant was incapable of consenting and did not agree to the sexual activity in question, and it did not err in addressing those issues together in its reasons.
- Where a complainant was incapable of consenting, there could be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. The capacity to consent was a necessary but not sufficient precondition to the complainant’s subjective consent. That was distinct from circumstances where a person could provide subjective consent that was not legally effective due to, for example, duress or fraud. Thus, when a trial court engaged both the issues of whether a complainant was capable of consenting and whether they did agree to the sexual activity in question, the trial court was not necessarily required to address them separately or in any particular order as they both went to the complainant’s subjective consent to sexual activity.
- There were two aspects to the overarching concept of consent. The first was subjective consent, which related to the factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity in question, and the second required that subjective consent also be effective as a matter of law. The Criminal Code set out a series of factors that would vitiate subjective consent in ss. 265(3) and 273.1(2). However, those factors did not prevent subjective consent, but recognized that even if a complainant had permitted the sexual activity in question, there were circumstances in which subjective consent would be deemed of no force or effect.
- The distinction between preventing subjective consent and rendering it ineffective was important, and the proposition that incapacity vitiated rather than prevented subjective consent had to be rejected for three reasons:
a) Subjective consent required a complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question, and it followed, as a matter of logic, that the complainant had to be capable of forming such an agreement.
b) Incapacity as a vitiating factor would be inconsistent with the structure of the Criminal Code, as incapacity under s. 273.1(2)(b) deprived the complainant of the ability to formulate a subjective agreement.
c) Capacity as a precondition to subjective consent provided certainty because it was inextricably linked to what subjective consent required: contemporaneous voluntary agreement to the sexual activity in question
As capacity was a precondition to subjective consent, the requirements for capacity were tied to the requirements for subjective consent. Capacity to consent required that the complainant had an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they had a choice of whether or not to engage in the sexual activity in question.
Subjective consent required a voluntary agreement and the complainant had to be capable of understanding that they had a choice of whether or not to engage in the sexual activity in question. At the very least, a voluntary agreement would require that the complainant exercised a choice to engage in the sexual activity in question. In order to voluntarily agree to the sexual activity in question, the complainant had to understand that saying no was an option. Consent required that the complainant had an operating mind at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it. Thus, an unconscious complainant could not provide contemporaneous consent. It followed that where the complainant was incapable of understanding that they had the choice to engage or refuse to engage, they were incapable of consenting. A complainant who was unable to say no, or who believed they had no choice in the matter, was not capable of formulating subjective consent.
In sum, for a complainant to be capable of providing subjective consent to sexual activity, they had to be capable of understanding four things:
a) the physical act;
b) that the act was sexual in nature;
c) the specific identity of the complainant’s partner or partners; and
d) that they had the choice to refuse to participate in the sexual activity.
The trial court did not err in its treatment of consent. Both the complainant’s capacity to consent and agreement to the sexual activity were at issue. It was open to the trial court to accept the evidence of incapacity and the evidence that the complainant did not agree to the sexual activity. Both findings went to a lack of subjective consent and did not need to be reconciled with each other, nor approached in any particular order.
Whether the complainant had a memory of events or not did not answer the incapacity question one way or another. The ultimate question of capacity had to remain rooted in the subjective nature of consent. The question was not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question was whether the complainant understood the sexual activity in question and that she could refuse to participate.
The trial court’s reasons were also sufficient. Trial reasons had to be both factually and legally sufficient. Factual sufficiency was concerned with what the trial court decided and why. Legal sufficiency required that the aggrieved party be able to meaningfully exercise their right of appeal. The task for appellate courts was not to finely parse the trial court’s reasons in a search for error, but rather to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explained what the trial court decided and why they decided that way in a manner that permitted effective appellate review.
To succeed on appeal, an appellant’s burden was to demonstrate either error or the frustration of appellate review, and neither was demonstrated by merely pointing to ambiguous aspects of the trial decision. Where ambiguities in a trial court’s reasons were open to multiple interpretations, those that were consistent with the presumption of correct application had to be preferred over those that suggested error, as it was only where ambiguities, in the context of the record as a whole, rendered the path taken by the trial court unintelligible that appellate review was frustrated.
The respondents received a fair trial. They were presumed innocent and held the Crown to its burden to prove their guilt beyond a reasonable doubt. They thoroughly cross-examined the complainant and mounted a multi-faceted defence against the charge. But fairness did not require perfection. The trial court accepted the evidence of the complainant that sexual activity began when she was unconscious and continued despite her pleas for the respondents to stop. The trial court’s reasons revealed no error on a proper appellate reading. The respondents’ convictions should not have been overturned simply because the trial court expressed itself poorly.
A trial court’s findings of credibility deserved particular deference. While the law required some articulation of the reasons for those findings, it also recognized that in the system of justice the trial court was the fact finder and had the benefit of the intangible impact of conducting the trial. Frequently, particularly in a sexual assault case where the crime was often committed in private, there was little evidence beyond the testimony of the complainant and the accused, and articulating reasons for findings of credibility could be more challenging. Such findings had to be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between credibility and reliability. Appellate courts should consider not whether the trial court specifically used the words credibility and reliability but whether the trial court turned their mind to the relevant factors that went to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.
In the present case, the Court of Appeal did not conduct a functional and contextual reading of the trial court’s reasons, but rather assessed those reasons removed from the context of the live issues at trial. The trial court’s reasons should not be read as equating any degree of intoxication with incapacity, as what was at issue was the extreme degree of intoxication to which the complainant testified. Similarly, the trial court’s blending of consent and capacity revealed neither an error in law nor insufficient reasons. Capacity was not the only issue at trial, and the trial court’s reasons could be read as finding both that the complainant was incapable of consenting and that she did not agree to the sexual activity. Those findings were not legally contradictory and both were available on the evidence.
The trial court’s reasons were not perfect. They did not have to be. The trial court did not err in addressing consent and capacity together throughout its reasons. Capacity was a precondition to consent, and as such there was no need for the trial court to consider capacity separately from or after the issue of factual consent. It was open to the trial court to find that the complainant was both incapable of consenting and factually did not consent and convict the respondents on either or both routes. Nor did the trial court equate any degree of intoxication with incapacity. The trial court explained what it found and why, and what it found was that the respondents committed a sexual assault upon the extremely intoxicated complainant, who was passed out when the assault commenced. Their convictions were safe and the trial court made no error.Brown and Rowe, SCJJ (concurring)
The difficulty was that, while it was clear that the trial court convicted on the basis of the complainant’s incapacity to consent, his reasons did not disclose what standard he applied in deciding that the complainant was incapable of consenting. That was a critical omission, since the complainant’s evidence was unclear as to capacity, and certainly did not lead unavoidably to a finding of incapacity. She did not testify, for example, that she was unable to understand the physical act, that the act was sexual in nature, the specific identity of the accused, or that she had the choice to refuse to participate in the sexual activity. Nor did she testify to unconsciousness during the sexual acts, such that a finding of incapacity necessarily followed. Rather, her testimony was that she was very intoxicated, and that her ability to resist the accused was correspondingly impaired.
The problem was that the evidence could also support the conclusion that the complainant had the cognitive capacity to consent throughout the interaction, notwithstanding her intoxication, and that the trial court’s reasons were ambiguous as to the threshold it applied in determining that the complainant lacked capacity. Without any reference to the threshold for a finding of incapacity, or findings of fact that demonstrated an appreciation of that threshold, it remained possible and, indeed, from the trial court’s reasons it was difficult to conclude otherwise that the trial court simply accepted that the complainant was intoxicated and ended its analysis at that point, without considering the further question of whether that intoxication was such as to result in incapacity. Not every instance of intoxication would result in incapacity. In order to convict the respondents, as it did, on the basis that the complainant was incapable of consenting, it was crucial that the trial court satisfy itself that the complainant was intoxicated to the point that she could not provide consent.
The trial court’s reasons were insufficient to allow appellate review of its finding that the complainant did not have the capacity to consent. In view of the overwhelming evidence that the complainant did not consent to the sexual activity in question, however, no verdict other than guilt was possible.
Per Cote, SCJ (Dissenting Opinion)
- It was the Criminal Code which established the requirement of a two-step analysis of consent to sexual activity. The first step in the statutory framework was to determine whether the complainant voluntarily agreed to the sexual activity in question or whether a reasonable doubt was raised in that regard. If so, the court should then turn to the second step and consider whether the agreement was obtained in circumstances vitiating consent. In the instant case, the trial court did not do so, which was an error of law.
- While trial courts were presumed to know the basic legal principles with which they engaged on a regular basis, there had to be an intelligible foundation for their verdicts. The trial court’s statement in the present case that s. 273.1(2)(b) on inability to consent to the sexual activity applied in instances where a complainant was intoxicated suggested that its view was that any level of intoxication was sufficient to vitiate consent, and it was not clear that that belief did not constitute the basis for its conclusion that there was no consent.
- In accordance with the Criminal Code’s provisions, the trial court was first required to determine whether the evidence established that there was no consent and then, if the complainant did consent or her conduct raised a reasonable doubt in that regard, whether her apparent consent was vitiated by incapacity. The trial court did not do so, which was an error of law. Its statement that the balance of the evidence at trial convincingly supported the conclusion that the respondents forced the complainant into having non-consensual sex was unclear as to whether the conviction could be sustained on the basis that the complainant did not consent, regardless of her capacity.
- Although findings of incapacity or non-consent were not tainted by error simply because of the order in which they were made, the absence of analysis to substantiate the trial court’s conclusory statement did not provide the basis for meaningful appellate review.
- Applying the curative proviso as set out in s. 686(1)(b)(iii) of the Criminal Code was appropriate in two circumstances:
a) where the error was so harmless or trivial that it could not have had any impact on the verdict; or
b) where the evidence was so overwhelming that the trier of fact would inevitably convict.
The trial court’s error could not be said to be so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial that any reasonable judge could not possibly have rendered a different verdict if the error had not been made. The complainant’s incapacity was a live issue at trial, and acceptance of her evidence as credible was insufficient to ground a conviction.
The instant case was not an appropriate case in which to apply the curative proviso. The trial court’s errors were not harmless or trivial, nor was the evidence so overwhelming that the trier of fact would inevitably convict. It was not possible to precisely gauge the impact of the error of law committed by the trial court. Its reasons were unclear as to whether it considered the issue of consent separately from the issue of capacity, and whether its incorrect view that any level of intoxication was sufficient to vitiate consent constituted the basis for its statement that there was no consent. The convictions could not be upheld based on the simple statement, prior to its analysis of the case that the complainant did not consent to the sexual activity and on a general conclusion that the balance of the evidence at trial convincingly supported the conclusion that the respondents forced the complainant into having non-consensual sex. Not only did the trial Crown not invite the trial court to convict on that basis, but those two statements did not make it clear that the trial court convicted the respondents on the basis of non-consent irrespective of incapacity.
Appeal allowed, the order of the Court of Appeal wasset aside, and the respondents’ convictions were restored.
Relevance to Kenya’s legal system
The Sexual Offences Act, No. 3 of 2006 defines consent in section 42 in that a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. Section 44 on evidential presumptions about consent provides that:
(1) If in proceedings for an offence under this Act, it is proved—
(a) that any of the circumstances specified in subsection (2) existed; and
(b) that the accused person knew that those circumstances existed, the complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to raise an issue as to whether he or she consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he or she reasonably believed it.
The circumstances above include using violence against the complainant, unlawfully detaining the complainant and the complainant was asleep or unconscious.
Section 45 on conclusive presumptions about consent provides:
(1) If in proceedings under this Act it is proved that the accused person committed any offence and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the commission of that act; and
(b) that the accused person did not believe that the complainant consented to the act being complained of.
The circumstances above are intentionally deceiving the complainant through impersonation and to the nature of the act complained of.
In Republic v Francis Otieno Oyier  eKLR, the court held that the lack of consent was an essential element of the crime of rape. The mens rea in rape was primarily an intention and not a state of mind. The mental element was to have intercourse without consent or not caring whether the woman consented or not. The court also cited the case of R v Harwood K (1966) where the court held that if a woman yielded through fear of death or through duress, it was rape and it was no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor was it any excuse that she consented after the fact.
The court in Charles Ndirangu Kibue v Republic  eKLR held that consent to sex mattered because it could transform coitus from being among the most heinous of criminal offenses into sex that was of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just was commonly impaired by conceptual confusion about what consent meant. Consent was both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent could be a mental state on a woman’s part, an expression by her, or both; it could consist of facts about a woman’s mental state or expressive conduct that did not necessarily constitute a defense to rape, or only such facts as did constitute a defense to rape; and it could consist of facts about a woman’s mental state or expressive conduct, or a legal fiction of such facts.
Finally the court said that consent meant an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicated willingness to participate in the specific sexual act. Thus, to absolve a person of criminal liability, consent had to be given freely and it had to not be obtained by fraud or by mistake or under a misconception of fact. That clause operated where a woman was unresponsive whether because of the influence of drink or drugs or any other cause, or was so imbecile that she was incapable of giving any rational consent. Consent of the woman had to be obtained prior to the act.
In Peter Mukaba Ondu v Republic, Criminal Appeal 66 of 2008 the High Court, in quashing a conviction of rape, found that the lower court had not considered the issue of consent in regard to how the complainant went to the house of the accused, the amount of time she spent there before “escaping” and the circumstances in which the offence was allegedly committed. Had the trial court done so, it would have arrived at a different finding.
In Ezekiel Cheruiyot Koros v R,Criminal Appeal 5 of 2010, the court stated that the defilement provisions were made on the realization that in our society, a girl of under the age of 18 years is either not fully mature to consent to and/or engage in sexual intercourse and is too vulnerable and requires protection of the law from those bent on engaging in immoral sexual acts.
In Bonu v R, eKLR the appellant was accused of the defilement of a child aged 10 years. He alleged that he was involved in a love affair with the complainant and thus she was an active and willing participant to the sexual relations. However, the court stated that “[a] minor has no capacity in law to give informed consent to sexual relations, thus no matter how willing the minor may have been, any and all acts of sexual intercourse with persons proved to be below the age of 18 years amount to an offence.
According to Prof. Winifred Kamau’s paper titled Legal Treatment of Consent In Sexual Offences in Kenya, consent is defined in Black’s Law Dictionary as the agreement, approval, or permission as to some act or purpose especially given voluntarily by a competent person. Express consent is defined as consent that is clearly and unmistakably stated. Implied consent is consent inferred from one’s conduct rather than one’s direct expression, while informed consent is a person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives.
She goes ahead to state that in many cases, the presence or absence of consent is often the only disputed issue in the trial of an accused charged with a sexual offence. The burden of proof in criminal cases is that the prosecution must prove its case beyond reasonable doubt. This, coupled with the fact that sexual offences attract very harsh penalties, therefore necessitates that this element of consent be determined conclusively. However, consent is a contentious issue and not easily determined as it often involves perception, interpretation of feelings and reactions, and is a reflection of societal attitudes and values, policy considerations and gendered power relations.
The paper also talks about certain offences in the Sexual Offences Act where lack of consent is not expressly mentioned, but the use of the words “unlawful” or reference to other offences where lack of consent is a key element of an offence may be construed as referring to lack of consent. These offences include: attempted rape, gang rape, sexual assault, compelled or induced indecent acts, acts which cause penetration or indecent acts committed within the view of a family member, child or person with disabilities, indecent act with a child or adult, promotion of sexual offences with a child, child trafficking, child sex tourism, child pornography, exploitation of prostitution, trafficking for sexual exploitation, prostitution of persons with mental disabilities, deliberate transmission of HIV or any other life threatening sexually transmitted disease.
Finally, Dr. Winfred Kamau concludes that the Sexual Offences Act has made a laudable attempt at defining consent and the circumstances in which consent may be vitiated. In an effort to alleviate the difficulties faced by the prosecution in proving lack of consent, the Act has imposed evidential and conclusive presumptions relating to consent which theoretically make it easier for the prosecution to prove its case. Unfortunately, Kenyan courts have not made any pronouncements on the operation of these presumptions. Consent remains a difficult issue as it is fraught with uncertainties in meaning and intention, and interpretation always depends on the specific context of the case.
As can be seen in the Kenyan cases, capacity to consent and consent are not addressed separately by courts but as one and the Canadian judgment has addressed the relationship between the two thereby widening the scope of consent and how the courts analyse it especially in sexual offences cases.