Clearly a Drunk Can Consent? Intoxication and Consent in Canada (a law student's perspective)
A recent decision out of a Nova Scotia court has sparked controversy and protest across the country. Provincial Court Justice Gregory Lenehan acquitted a taxi driver who was charged with sexual assault after being found with a partially naked young woman passed out in the back of his cab. In his oral decision, Lenehan stated bluntly, “clearly a drunk can consent.” Lenehan went on to find that the Crown had failed to prove beyond a reasonable doubt that the taxi driver, Bassam Al-Rawi, had committed sexual assault. He acknowledged that Al-Rawi’s conduct violated the moral obligation cab drivers have not to take advantage of their passengers, but concluded that the complainant’s absence of memory cannot be equated to an absence of consent.
In his oral decision released on March 1st, 2017, Justice Lenehan discussed many “concerns” he had regarding the circumstances surrounding Al-Rawi’s arrest. He summarized the evidence provided in his reasons including the following facts:
The cab was pulled over on a street that was not on the way to the complainant’s home;
The complainant’s belongings were scattered all over the cab;
The complainant was nude from the breasts down;
Al-Rawi was holding, and attempting to hide, the complainants urine soaked pants and underwear (which were turned inside out as though they had been pull off of her body);
The complainant was positions in the car with her legs propped up on the backs of the front bucket seats.
When the constable arrived the complainant was unconscious; and
Al-Rawi had his pants undone and partially off when the constable arrived.
These “concerning” pieces of evidence led Lenehan to conclude that Al-Rawi was engaging in, or about to engage in, sexual activity with a woman who was incapable of consenting.
However, Lenehan then went on to discuss the burden of proof. Explaining that the Crown had to prove beyond a reasonable doubt that Mr. Al-Rawi had engaged in sexual activity without the complainant’s consent. Lenehan stated that when the constable arrived Mr. Al-Rawi was not touching the complainant, and that the crown produced no evidence of what occurred before the constable arrived on the scene. Lenehan went on to acknowledge that taxi drivers are under a moral obligation not to take advantage of intoxicated people, and concluded that even if the complainant consented to Al-Rawi removing her clothes Al-Rawi had a moral obligation to decline. And while the judge made a moral condemnation of Al-Rawi’s behaviour, he stated that the Crown has not provided any evidence on which he could conclude beyond a reasonable doubt that Al-Rawi engaged in the behaviour he was accused of. Lenehan concluded stating that “a lack of memory does not equate to a lack of consent… Where the crown has failed to prove beyond a reasonable doubt (the complainant’s) lack of consent, I am left with no alternative but to find Mr. Al-Rawi not guilty.”
This decision has sparked outrage across the country. Lenehan’s highly contentious statement that “clearly a drunk can consent” is rapidly becoming as notorious as Justice Robin Camp’s now infamous statement that a sexual assault victim should have kept her “knees together.” Numerous petitions, complaints to the office of the Chief Justice of the Nova Scotia, and protest marches calling for Lenehan’s removal from the bench have been going on since Lenehan gave his decision at the beginning of March. Justice Camp, was similarly the subject of scathing criticism for his decision. He recently resigned after the Canadian Judicial Council recommended he be removed from the bench – now protesters and petitions are calling for Justice Lenehan’s resignation as well.
In light of all this controversy it bears discussing whether Justice Lenehan errored in law when he acquitted Bassam Al-Rawi. Consent in the Criminal Code is defined in s.273(1) as “voluntary agreement of the complainant to engage in the sexual activity in question.” Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law. Section 273.1(2) then sets out specific situations where there is no consent in law which includes, “where the complainant is incapable of consenting to the activity.” Section 273.2 goes on to explain that the defence of “honest belief in consent” is not available where the accused’s belief arose from their own recklessness or wilful blindness, or the accused did not take the reasonable steps, in the circumstances known to the accused at the time to ascertain that the complainant was consenting.
According to the Supreme Court of Canada in R v JA, consent does not exist when one of the parties is unconscious. The meaning of “incapable” in section 273.1(2) requires looking at the circumstances involved. Intoxication is a factor that affects a complainant’s capacity to consent to sexual activity, however exactly what level of intoxication voids an ability to consent is often considered in conjunction with the circumstances. Where a person has become voluntarily intoxicated the courts have a very high threshold for incapacity. Justice Lenehan stated, controversially, that “clearly a drunk can consent,” and while this statement has sparked outrage it is not technically incorrect.
The Crown had appealed Lenehan’s decision on 6 bases, all of which relate to errors in the law of consent:
the judge erred in law in holding the Crown had adduced no evidence of lack of consent on the part of the complainant
the judge erred in law by engaging in speculation on the issue of consent rather than drawing inferences from the facts proven in the evidence
the erred in law by failing to give proper legal effect to the facts found by him
the judge erred in law in his interpretation and application of the test for capacity to consent
the judge erred in law by failing to direct himself on the provisions of section 273.1 of the criminal code
the judge erred in law by failing to determine whether the accused had taken all reasonable steps to ascertain that the complainant was consenting
such other grounds of appeal as may appear from a review of the record under appeal
Regardless of the outcome of the appeal, this case has clearly grabbed the attention of Canadians and raised important issues about how sexual assault victims are treated by the judicial system. The House of Commons Standing Committee on the Status of Women recently released a report titled Taking Action to End Violence Against Young Women and Girls in Canada. The report which addressed the effects of gender-based violence, recommended “that the Government of Canada provide funding to the National Judicial Institute for the express purpose of developing comprehensive training on gender-based violence and sexual assault for the judiciary and those seeking to become part of the judiciary, and that the Government of Canada encourage all judges to participate in this training.”