Clarity on Capacity to Consent: What We’ve Been Needing All Along - Ashley Rees

For what seems to be a painfully simple concept, there seems to be a substantial amount of societal confusion around the issue of consent as it pertains to the sexual interactions between human beings. Realistically though, how could we expect any different from the public in Canada if our Supreme Court was still clarifying the legal test required to define capacity to give consent as recently as May 2021?[1] In R. v. G.F., in a majority decision delivered by Karakatsanis J., the Court held that in order to be legally capable of providing sexual consent, an individual must be able to understand 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.[2]

Finally, a fool proof definition has been provided that outlines who is and is not capable of providing the consent that must be proven absent to meet the actus reus element of a sexual assault offence under the Criminal Code.[3]I submit that every time the Court gives further clarification on the meaning and limits of consent, society becomes safer for all its members. While it will not stop sexual assaults altogether, unblurring the line of when a person is or is not too inebriated to consent to sexual activity will allow people to make more informed decisions about when they do and do not choose to engage in said activities. Ideally, people would feel more empowered to identify when they or their partners are approaching these limits. It is my hope that, going forward, this decision can inform not only consent education, but also harm-reduction education surrounding substance use. People want to enjoy sex, but a clouded understanding of the law surrounding consent—which is an affirmation of society’s values on personal autonomy under the law—creates unsafe situations for everyone involved.

The facts of R. v. G.F. are simple: The then 16 year-old complainant testified that after a night of heavy drinking, she was awoken by discussions between the two respondents about sexual acts they were going to perform on her.[4] These acts commenced, and the complainant testified to initially struggling before she finally felt like she had no choice in the matter and laid there while the assault happened to her.[5] While the respondents testified otherwise, the trial judge accepted the evidence of the complainant that she did not consent to the activities and convicted both respondents of sexual assault.[6] Specifically, the trial judge ruled:

[t]he balance of the evidence at trial convincingly supports the conclusion that [G.F.] and [R.B.] forced [the complainant] into having non-consensual sex. 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.[7]

At appeal, however, G.F. argued that based on the judge’s words of “this applies in instances where a complainant is intoxicated,” it was unreasonable that they be found guilty because if the complainant was sober enough to remember the events, she was sober enough to consent.[8] While the Ontario Court of Appeal rejected this argument, they did agree that there was a degree of vagueness in the trial judge’s wording in that it could imply that any degree of intoxication could vitiate consent. [9]

So, one issue before the Supreme Court was whether it is necessary to separate capacity to give subjective consent and consent given at all. Ultimately they determined that because incapacity prevents consent rather than vitiating it, it is unnecessary to consider whether or not the complainant has communicated subjective consent once it is established that their incapacity would prevent them from legally doing so in the first place.[10] To the point of capacity, the Court had previously recognized in Barton and Hutchinson that a complainant must be capable of understanding the act they were doing, that the act was sexual, and who they were performing the act with.[11] In R. v. G. F., however, the Court adds a fourth prong to this test: the complainant must have the understanding that they have the option to say no.[12] This provides exceptional clarity. If your date seems unsure whatsoever at any point if they want to continue an interaction with you: stop immediately. This is a sign that they may have had enough to drink that they no longer are able to understand that they have a choice to refuse. If people need words to figure out whether someone is so drunk that the sexual encounter they are embarking on is automatically legally defined as assault, here they are; go through the check list. There are no more excuses.

So, what could proper consent look like? I’ll share a story: I was at a big party. It was a massive celebration at a hotel after a momentous local event. It goes without saying that the liquor had been flowing. I was feeling joy emanating throughout the room and I connected with someone cool. At the end of the night, part of me really wanted to go up to his room with him, but I was a little unsure if it was the right thing to do. I will always remember the conversation that we had. I said, “I really like you, and this is really fun, but I am too drunk for this.” And he said, “you are right. Surely neither of us are capable of actually consenting right now.” We exchanged social media handles, and we still like each other’s posts from time to time even 6 years later, but I’ll always honour that time that a person perfectly modelled the recognition of capability to consent and recognized that it is a two way street.

Now you might be thinking, how does that delightful little overshare apply to the legal facts? You said that part of you wanted sexual touching to occur, so that meets the test for consent set out in Ewanchuk when the Court said that consent means “that the complainant in her mind wanted the sexual touching to take place.” Before the new prong of the test in R. v. G.F. , the only way I could have legally argued that I was unable to give consent at this point was through the issue of specific identity. This guy only knew drunk me (somehow even more outspoken than my sober self), and I knew nothing about him besides his political affiliation. If he told me his name, I had forgotten it already because I needed him to repeat it when we exchanged info as we parted ways. I would argue that I did not meet the standard set out in the third prong of the test in R. v. G.F., which requires an understanding of the specific identity of the complainant’s partner. Whether or not that argument would be accepted by a judge is admittedly highly debatable.

While the SCC has examined the definition of identity mitigating consent on a fraudulent basis, the case law relating to capacity to identify a person follows a narrow and literal definition of mistaken identity: unintentionally consenting to sexual acts with the wrong person.[13] In R. v. Crangle, the Ontario Court of Appeal held that the definition of “specific identity” at least precluded the requirement that a complainant be sober enough to tell her husband apart from his brother in the dark.[14] At this point in time, I’d love to remain optimistic, but it does seem somewhat intangible and out of reach to define identity in more broad terms for this purpose. Though, the hippy in me enjoys the theory that we are not capable of consenting until we are capable of understanding (and retaining said understanding) more about a person’s “true identity” than just their name.

Thanks to the new fourth prong of the test to determine capacity to consent requiring that the complainant having the understanding that they still have the power to say no, however, I believe there is now an additional argument to be made in the situation I outlined above. The reason I was so surprised by the man in my story’s reaction to my declaration that I was too drunk for sex was that too many times before that, I had heard rebuttals to that same statement: “what do you mean, you’re totally fine?”; “you only had a few drinks, I know you want it”; “I’ve been drinking too, let’s make bad decisions together.” Those conversations have always ended in encounters that I did not want to happen; that I felt I did not consent to. “No” has never meant “convince me.” I am a fierce arguer and if I am too drunk to maintain the clear boundary that I set up by simply stating that I am too drunk, I am too drunk. This is another way of saying that if you are able to rattle my understanding that I am still able to say no to something, then I am too drunk to consent.

Further to that, if we stop feeling like ourselves by way of intoxication, is that a signal we are past the point of being able to give consent? I do think that there is hope for the idealistic party encounter I had to become the norm for people out in society, and part of that hope lays in the potential for consent education specifically around the law. What would it look like if sex education curriculums incorporated an age appropriate unit on current consent laws and educators felt empowered to lead engaging discussions on what consent looks like through the lens of the words in the R. v. G.F. decision? We could get used to asking those four questions so that we can start recognizing not only our own capacity, but the capacity of those who we are interacting intimately with. By having these discussions, we learn what it is that we specifically value about the autonomy that the definition of consent within the law protects. The ultimate goal: that fewer sexual encounters end up as assaults because people genuinely have a better idea of what “consent” means themselves.

The answer is in there. As a future lawyer and a survivor of sexual violence, I find hope in the decision in R. v. G.F. and I hope that others do too. We need to spread the word on what it looks like when people we care about are past the capacity to legally consent, and we absolutely have the power in the world to do that.

[1] R v GF, 2021 SCC 20. [GF] [2] Ibid at para 57. [3] Criminal Code, RSC 1985, c C-46, ss 265(3), 273(1). [4] GF, supra note 1 at paras 7-9. [5] Ibid at para 9. [6] Ibid at para 14. [7] R v GF, 2016 ONSC 3465 at paras 71-72. [8] GF, supra note 1 at para 15. [9] Ibid at paras 16-19. [10] Ibid at para 42. [11] GF, supra note 1 at para 55; quoting R v Hutchinson, 2014 SCC 19 at paras 54-57; and R v Barton, 2019 SCC 33 at para 88. [12] GF, supra note 1 at para 56. [13] R v Crangle, 2010 ONCA 451 at para 30. [14] Ibid.