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'Clearly, a drunk can consent’ or can they?- A law student's perspective

A lower court ruling out of Nova Scotia, acquitted a cab driver of sexual assault charges, citing failure, on the part of the Crown, to prove lack of consent beyond a reasonable doubt. Can an incapacitated individual (with a blood-alcohol level of three times the legal limit) consent to sexual activities? A review of the case law seems to emphatically suggest -no!

Sexual assault is defined as any form of sexual contact with another individual without their consent. S.273.1(1) of the Criminal Code, defines consent as a “voluntary agreement” to engage in sexual activity, and if proven by the accused can result in a complete acquittal. However, consent is deemed meaningless if obtained through a) third party b) incapacitated state of mind or c) abuse a position of trust, power, and/or authority.

Further, the Supreme Court of Canada, found that consent ceases “as soon as the complainant falls unconscious and is incapable of consenting”, rendering unconscious consent to sexual activity impossible.

On the facts of the Nova Soctia case, a woman in her 20s took a cab after being refused entry to a bar for being intoxicated. Later police found the cab parked on a side street, with the woman passed out in the back seat naked. Bassam Al-Rawi, the cab driver, who had his own pants undone, was caught concealing the woman’s urine-soaked pants between the front seat and the console. The woman, who’s blood-alcohol level was beyond the legal limit, had no memory of the event.

The actus reus of absent consent cannot be validated if the complainant is incapacitated. The Court in R v. JA, found that for a complainant’s consent to be considered valid he/she has to remain conscious during the entire period the sexual activity takes place. reports that in the Nova Scotia case:

The judge said the testimony of the toxicologist showed the complainant might very well have been capable of appearing lucid despite her level of impairment, “and able to direct, ask, agree or consent to any number of different activities." “A lack of memory does not equate to a lack of consent"

Intoxicated complainants are not able to comprehend the risks and consequences and thus should not be held to the same standard as a reasonable/lucid law abiding citizen. Since alcohol effects the motor skills, coordination, and muscle control, inebriated individuals are more likely to make imprudent decisions, and perhaps these decisions are made in the absence of the necessary capacity. This case highlights the need for the Supreme Court of Canada or, better yet, Parliament, to be even clearer on the nature of incapacity in future sexual assault cases. The case also sheds a light on the seemingly high bar that Crowns may face every day, despite the progressive law reform of the past.

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