The Evolution of Capacity and Consent - Brittney Macht
Capacity and consent have historically been considered to be distinct concepts, yet in modern day consideration of sexual assault cases, the need for capacity to be considered as a precondition for consent is receiving more traction. This blog will discuss the traditional understandings and criticism of how capacity and consent are approached, and how a new definition discussed in R v G.F. has combated this criticism.
Overview of Sexual Assault and Consent
It is important to begin with a broad understanding of what sexual assault is and its relationship to consent and capacity. In Canada, the offence of sexual assault requires the Crown to establish touching, of an objectively sexual nature, to which the complainant did not consent.
Consent is defined by s. 273 of the Criminal Code as the “voluntary agreement of the complainant to engage in the sexual activity in question.” Additionally, under section 273.1(2), “no consent is given if an individual says or does something that shows they are not consenting; someone is unconscious or incapable of consenting; there is an abuse of position of trust, power or authority; and/or the individual says or does something to show they do not want the activity to continue once it has started.”
Concerns often arise when a complainant is claimed to not have the capacity to voluntarily agree to the sexual activity, specifically in cases of intoxication. What happens then if a complainant becomes too intoxicated to consent, and how will a judge consider this issue? The new Supreme Court of Canada case R v G.F. considers this question and reorganizes the traditional framework regarding capacity and consent in sexual assault law. However, before considering R v G.F., a historical review of the previous framework is required, as well as an understanding of commentator’s opinions on the effectiveness of this standard.
In R v Hutchinson (“Hutchinson”), the Court sets out a two-step framework in accordance with section 273.1(2)(b) to analyze consent. The Court requires the trier of fact to determine whether the complainant voluntarily agreed with sexual activity or whether a reasonable doubt is raised in this regard. If so, the court should then turn to whether this agreement was obtained in circumstances vitiating consent, meaning a person can consent but can have their consent rendered ineffective by intoxicants or other forms of incapacity. The court noted consent requires the complainant agree to the act, its sexual nature, and the specific identity of the partner.
The threshold for capacity was further established in R v Al-Rawi (“Al-Rawi”), where the court clarified the legal standard for capacity to consent to sexual touching. The Court noted a complainant is not capable of consent if the Crown establishes beyond a reasonable doubt for whatever reason that the complainant did not have the operating mind capable of “…appreciating the nature and quality of the sexual activity or knowing the identity of the person or persons wishing to engage in sexual activity or understanding she could agree or decline to engage in, or to consent to sexual activity.”
Criticism has been raised regarding this previous threshold in Hutchinson and Al-Rawi. Specifically, Elaine Craig, in her journal on Sexual Assault and Intoxication: Defining (In)Capacity to Consent, expressed disagreement with the Al-Rawi standard, stating in her comprehensive review of caselaw that she discovered this framework has a legal standard that is too low and an evidentiary threshold that is too high. Craig argued the result of this standard would create an outcome where no matter how severely intoxicated a person was when the sexual contact occurred, courts are unlikely to find they lacked capacity to vitiate consent unless they were unconscious during the activity.
Craig also discussed how this threshold test fails to sufficiently protect the sexual integrity of intoxicated persons for the following reasons: she notes the standard for capacity should not be based on the nature and quality of the sexual activity, as this standard often refers to the specifics regarding the physical act itself and it tends to be unclear and difficult to apply. She argues this standard creates an extremely low threshold for a court to meet as it requires only minimal capacity to show consent. Therefore, it may be appropriate to adjust the legal standard requiring the complainant to understand the specific risks and consequences of the assault rather than just having an understanding of the nature of the event. With this, trial judges who are often predisposed to implying consent in all cases could not meet the capacity standard as easily.
R v G.F.’s Reformation
Given the negative criticism regarding the Al-Rawi standard, the decision of R v G.F. revisited the relationship of capacity and consent. R v G.F. involved a complainant referred to as R.B., who consumed 8-10 shots of alcohol on a camping trip and had gone to lie down in the respondent’s trailer where he sexually assaulted her. The complainant testified she did not consent to the act and was going in and out of consciousness as she was so intoxicated.
The majority in R v G.F. decided the previous capacity test caused many pressing concerns. The majority’s first concern was that the traditional standard in Hutchinson deviated from their logical understanding of consent. The Court noted this was because consent “…requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question….” Therefore, it would flow naturally and logically that capacity should be a precondition rather than rendering consent ineffective after the fact. The Court also notes this standard would create a need at some point in their decision-making process to show the complainant was so impaired that subjective consent was no longer effective, creating confusion and significant uncertainty in the proceeding.
The Court determined the capacity to consent to sexual activity should be considered on four factors of which the complainant must understand at the time of sexual activity: the physical act, the sexual nature of the act, the identity of the complainant’s partner, and the choice to refuse to participate. If the complainant doesn’t understand one or more of these factors, they are rendered not to have the capacity to consent. Based on this definition, the Court found capacity is now a precondition to consent, and if the complainant consumes too many intoxicants and becomes incapacitated, incapacity prevents consent from occurring. In addition to this, the majority concluded the trial judge does not need to give descriptive reasons about consent and capacity so long as the factual basis for the decision is clear from the record.
Comments and Concerns Regarding the New Definition
Considering this new definition, R v G.F. creates a stricter standard for capacity that judges must review prior to the issue of consent. Taking this a bit further, I think it will also assist in ensuring litigation on sexual assault is conducted more efficiently, as it gets rid of any unnecessary confusion of when capacity should be considered in a proceeding. It also seems capacity as a precondition should be the natural order of operations in considering consent issues. It is therefore surprising this was not the way in which consent and capacity was considered traditionally.
However, given Craig’s arguments around the threshold for capacity to consent, the adoption of these additional factors in R v G.F. may also pose too low of a threshold, especially regarding the fourth factor of the complainant having a “choice” in refusing to participate. This could create too broad of a threshold to be interpreted especially if choice is not specifically defined by the Court.
Additionally, scholars like Craig may also find issue with the lack of reasons for finding or not finding capacity to be an issue. As indicated by the dissent, Justice Côté notes the absence of analysis in this decision to support the trial judges’ conclusory statement does not provide a meaningful basis for appellate review. Indicating a lack of reasons could create concerns about what evidence could be sufficient in the record so the court’s decision is “clear.” This could also pose concerns for future cases applying this standard, such as when referencing cases with no reasons and not an abundantly clear record, as it could pose difficulty in determining if a case’s facts are analogous.
Similarly, despite raising the evidentiary standard, it may not be effective due to underlying social assumptions. Craig notes at the core of the issue regarding the threshold for capacity is the “…influence of discriminatory social assumptions… (which) recognize the sexual predation of drunk women warrants the criminal law’s censure.” Therefore, even with a reformed definition put in place by R v G.F. in order for the majorities view to have full effect it may require more than a reformation of the law but also eliminating social assumptions about those who fall victim to sexual assault.
Since R v G.F. has only been published for eight months, there appears to be no case law putting this test into action. Nor does it seem any commentators have expressed their concern or appreciation of this new definition. Seeing the historical trend towards treatment of the sexual assault framework, it is likely there may be criticism regarding the vagueness of the standard along with some appreciation for the efficiency of the new definition. For now, as we wait for the courts and commentators’ opinions, the real work that needs to be done may not be concerned with legal standards but rather be in reference to the bias and discriminatory behaviour around sexual assault victims.
 R v GF, 2021 SCC 20.  R v GF, supra note 1 at para 22.  Criminal Code, RSC 1985, c C-46, s 273.  Ibid, s 273.1(2).  R v GF, supra note 1.  R v Hutchinson, 2014 SCC 19 [Hutchinson].  Ibid at para 4.  Ibid.  Filkow Law, “Do you have the capacity to consent after consuming alcohol?” (2021), online: <filkowlaw.com/supreme-court-ruling-sexual-assault-law/>.  Hutchinson, supra note 7 at para 57.  R v Al-Rawi, 2019 NSPC 37 [Al-Rawi].  Ibid at para 66.  Elaine Craig, “Sexual Assault and Intoxication: Defining (in)Capacity to Consent” (2020) 98 Can Bar Rev 70. [Craig].  Ibid at 70.  Ibid at 102.  Ibid at 93. Ibid at 91.  R v GF, supra note 1 at para 9.  Ibid.  Ibid at para 51.  Ibid at para 43.  Ibid.  Ibid at para 46.  R v GF, supra note 1 at para 57.  Ibid at para 58.  Ibid. Ibid at para 70.  Ibid at para 131. Craig, supra note 14 at 108.