In R v Owston, 2023 SKCA 101 [Owston], the Saskatchewan Court of Appeal recently provided critical clarification on whether someone has the capacity to consent to sexual activity when intoxicated. The Court made it clear that limitations in comprehension or reasoning ability due to intoxication do not, in and of themselves, establish that a person is incapable of consenting to sexual activity.
Mr. Owston was convicted of sexual assault after going home from the bar with a woman who was alleged to be very intoxicated. The following morning, the woman claimed to have no memory of interacting with Mr. Owston, leaving the bar with Mr. Owston, nor any memory of anything that occurred at his house.
Mr. Owston and the Complainant, who had met previously, ran into each other at a local bar. Both Mr. Owston and the Complainant had been drinking, but the Complainant was intoxicated to the point that the bar refused to serve her any more alcohol. Witnesses who saw the Complainant at the bar testified that she was obviously inebriated – she had been slurring her words, she had impaired motor skills, and she was having difficulty using her phone.
Some time later in the night, Mr. Owston and the Complainant left the bar together and went back to Mr. Owston’s home. Mr. Owston testified that he and the Complainant engaged in consensual sexual intercourse after arriving at his home.
The Complainant testified that, the next morning, she had no memory of what happened. She claimed not to remember going home with Mr. Owston, nor having sexual intercourse with him. She texted Mr. Owston asking him what happened. He told her that they had sexual intercourse. The Complainant then went to the police and reported that Mr. Owston had sexually assaulted her, because she did not have any memory of what had occurred. She stated she had no intention of having sex with Mr. Owston that night.
The trial judge found that evidence of the Complainant’s state of intoxication while at the bar proved that she did not have capacity to consent to sexual activity with Mr. Owston later that night. This decision was primarily based on the fact that the Complainant had “limited comprehension” and that her reasoning ability was “seriously impaired”.
On appeal, Mr. Owston argued that the trial judge had misapplied the test for capacity to consent as set out by the Supreme Court of Canada (“SCC”) in R v G.F., 2021 SCC 20 [G.F.].
The Court of Appeal held that the trial judge misapplied the test for capacity to consent, as set out in G.F. by inserting a requirement that a complainant have the ability to make a rational decision as to whether they want to engage in sexual activity.
In G.F., the SCC set out a four part test to determine whether someone had the capacity to consent to sexual activity. To have capacity to consent to sexual activity someone must be capable of understanding:
- The physical act;
- That the act is sexual in nature;
- The specific identity of the individual’s partner(s); and
- That they have the choice to say no to the sexual activity.
To prove a lack of consent, the Crown would be required to prove beyond a reasonable doubt that the complainant did not appreciate at least one of the four elements. Courts have held, however, that capacity does not require an individual to have the cognitive ability to consider and understand the risks and consequences associated with the sexual activity in question.
With this in mind, the Court of Appeal held that the trial judge misapplied the test from G.F. After considering the evidence, the Court of Appeal found that it was possible that the Complainant did have the capacity to consent to the sexual activity with Mr. Owston but had not remembered doing so.
In reaching this conclusion, the Court of Appeal looked to the evidence of the bouncer who interacted with Mr. Owston and the Complainant when they were leaving the bar together. He testified that the Complainant confirmed that she understood that she was leaving with Mr. Owston and that she knew where they were going. From this, and other circumstantial evidence, the Court of Appeal concluded that the Complainant may have been capable of understanding the physical act, that the act was sexual in nature, the specific identity of her sexual partner, and that she had the choice to say no to the sexual activity at the time she left the bar with Mr. Owston, and therefore, that she may have had capacity to consent when she and Mr. Owston had sexual intercourse.
Because of the very high threshold of establishing guilt beyond a reasonable doubt in a criminal prosecution, the fact that there was a reasonable inference that the complainant may have consented was enough to overturn the conviction and for an acquittal to be entered. A new trial was not ordered because the evidence at trial was not capable of supporting the trial judge’s finding that a lack of capacity was proven beyond a reasonable doubt.
The test for capacity to consent is not whether someone was coherent, rational, or capable of logical reasoning. Evidence of how someone was acting and speaking around/at the time of the sexual activity, or whether they have memory of the sexual activity occurring, are not determinative of whether they lacked capacity to consent.
As Owston demonstrates, just because someone blacks out and wakes up the next morning having no memory of having engaged in sexual activity, that does not mean that they were intoxicated to the point that they lacked the capacity to consent to sexual activity.
The McDougall Gauley Defence Group has experience defending individuals charged with all types of offences, including sexual assault.
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