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Consent while intoxicated: a moving target

By Allison Conway of Budden & Associates

The Criminal Code, RSC 1985, c C-46, defines consent in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

Section 273.1(3) of the Code goes on to say that no consent is obtained in four situations, including where the complainant is incapable of consenting to the activity.

Intoxication has been found by Canadian courts to be a situation where a complainant may not be capable of consenting to sexual activity.

The Supreme Court of Canada in R v Ewanchuk, [1999] 1 SCR 330, set out that one element that must be proven in order to obtain a conviction in cases of sexual assault is the absence of consent.

In determining whether there is an absence of consent, the Court will look, among other things, at the complainant’s state of mind at the time the incident occurred.

The effect of drunkenness of the complainant’s ability to consent was examined in R v Haraldson. 2012 ABCA 147. In that case, the Alberta Court of Appeal stated that:

“Capacity to consent to sexual activity requires something more than the capacity to execute baseline physical functions. The question is the degree to which intoxication negates comprehension or volition. A drunk complainant may retain the capacity to consent.”

The Court went on to state that:

“Mere drunkenness is not the equivalent of incapacity… Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control…A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases…though it is not required as a matter of law.”

The Court of Appeal further adopted the following from the trial level decision:

“…it is important to note that the loss of memory is not conclusive of incapacity, nor is rationality conclusive of good decision making.”

Ultimately, the issue of consent is a live issue for determination in trial of sexual assault.

Evidence may be led by both sides as to the actions of the complainant during the relevant time period, including the number of drinks or other activities in which the complainant was engaged at the time, with a view to proving whether or not the complainant had the capacity to consent to the sexual activity.

The recent trial of Constable Carl Douglas Snelgrove has attracted a great deal of public attention, particularly in the jury’s finding that he was not guilty of sexual assault.

Ultimately, we will never know how the jury came to acquit the accused, as reasons are not provided in jury verdicts.

That said, consent was undoubtedly a live issue at trial and it is likely that the jury’s deliberations considered whether or not the complainant did or could have consented, and whether the accused reasonably believed that she did.

While the public may find the actions of Constable Snelgrove to be morally questionable, the jury determined that his actions did not rise to the level of criminality.

It is perhaps this distinction between morality and legality that has fueled the debate about the complainant’s capacity to consent.

Comments and posts have mentioned that the complainant was intoxicated, and therefore could not consent, or that because the complainant could not remember consenting, she was clearly too intoxicated to have consented.

While these statements may reflect the ideal moral definition of consent, they do not comply with the legal definition as set out in Haraldson above.

Ultimately, consent is a moving target that will shift depending on the facts as they present in each case, and the presence or absence of consent is a finding to be made by the judge or jury.

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