Supreme Court Clarifies the Issue of Capacity to Consent in Sexual Assault Cases

Written on behalf of Barrison Law

Earlier this year, the Supreme Court of Canada delivered its decision in the case of R. v. G.F. and R.B. and clarified the question of consent and the capacity to consent in relation to sexual activity.

In Canada, the offence of “sexual assault” is broad and includes all unwanted sexual activity, including unwanted sexual grabbing, kissing, fondling and rape. Sexual activity is only legal when both parties consent to the act. Consent is defined in section 273.1(1) of the Criminal Code as the voluntary agreement to engage in the sexual activity in question. According to 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 a 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.


A 16 year old complainant, identified as C.R., testified at trial that she became intoxicated while on a camping trip in 2013 and after vomiting and passing out in a trailer belonging to a couple, identified only by their initials as G.F. and R.B,. she awoke to find herself being sexually assaulted by the couple. The couple were co-workers of C.R.’s mother.

C.R. admitted that she drank between 8 to 10 shots, mostly provided by G.F., and did not consent to any sexual activity. She testified that when she awoke she found her pants and underwear pulled down and G.F. and R.B. were sexually assaulting her. She gave evidence and that she repeatedly told the couple to stop.

G.F. and R.B. maintain that C.R. only had a beer and two half-ounce shots and did consent to take part in the sexual activity.

The Crown prosecutor argued that the complainant’s evidence established incapacity due to intoxication and that the complainant did not permit the sexual activity.

The defendants argued that the complainant was not credible and that she was not as intoxicated as she claimed and agreed to partake in the sexual activity.

The trial judge accepted the complainant’s evidence that she had not consented and was too drunk to consent. The defendants, G.F. and R.B .were found guilty of sexually assaulting C.R.


This case was appealed to the Ontario Court of Appeal where the convictions were overturned and a new trial was ordered as it was found that the trial judge erred on the following two grounds:

  1. He did not explain why he found C.R. was too drunk to provide consent; and
  2. He should have considered the issue of consent separately from the issue of capacity.

The Court of Appeal found that the trial judge incorrectly suggested that any level of intoxication is enough to negate consent. Furthermore, the trial judge should have considered the issues of consent and the capacity to consent as separate issues.


The Supreme Court of Canada overturned the decision of the Court of Appeal and reinstated the convictions of G.F. and R.B. The highest court in Canada rejected the notion that an individual can consent, but have his or her consent be ineffective due to incapacity or impairment. It ruled that consent and the capacity to give consent are indistinguishably linked.

The Supreme Court set out a four part test to determine whether an individual is capable of consent. The individual must be capable of understanding all of the following:

  1. The physical act;
  2. The sexual nature of the act;
  3. The identity of the sexual partners; and
  4. That he/she may refuse to participate in the act.

With respect to being intoxicated, the majority of the Supreme Court ruled that just because an individual can walk, talk or remember an event, does not mean that he/she had the capacity to consent to the sexual activity. The central issue is whether the individual “understood the sexual activity in question and that she could refuse to participate”.

As written on behalf of the majority of the judges of the Supreme Court:

Capacity to consent requires that the complainant have an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they have a choice of whether or not to engage in the sexual act in question.

 The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate.

This case makes it clear that capacity is a precondition to consent.

Justice Karakatsanis, writing on behalf of the majority, stated:

The trial judge did not err in addressing consent and capacity together throughout his reasons. Capacity is a precondition to consent, and as such there was no need for the trial judge to consider capacity separately from or after the issue of factual consent. It was open to the trial judge to find that the complainant was both incapable of consenting and factually did not consent and convict the respondents on either or both routes.

If you have been charged with a sexual assault offence or related charge or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Barrison Law online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are available when you need us most.