Her Majesty the Queen v. G.F. et al.
[Indexed as: R. v. F. (G.)]
2019 ONCA 493
Court of Appeal for Ontario, Watt, Pardu and Nordheimer JJ.A.
June 14, 2019
Criminal law — Sexual assault — Consent — Two-step approach
appropriate where both consent and capacity to consent are potentially
in issue — Inquiry into complainant’s capacity to consent usually being
unnecessary where Crown proves that complainant did not affirmatively
and subjectively consent — Accused’s appeal from conviction for sexual
assault allowed where trial judge failed to consider issue of consent
apart from issue of capacity and where his reasons could be read as
equating any degree of impairment on part of complainant with incapacity to consent.
The appellants were convicted of sexual assault. The then 16-year-old complainant and her family were on a camping trip with the appellants, who were common
law spouses. The complainant testified that the appellants committed sexual acts
with her while she was so intoxicated that she had no control of herself and “kept
blacking out and going in and out of it”. She also testified that she said “stop”
a few times and was crying. The appellants claimed that the complainant consented
to the sexual activity. They appealed their conviction.
Held, the appeal should be allowed.
The trial judge erred in his analysis of consent and capacity to consent. A two-step approach is appropriate where both consent and capacity to consent are
potentially in issue. An inquiry into the complainant’s capacity to consent will
usually be unnecessary where the Crown proves beyond a reasonable doubt that
the complainant did not affirmatively and subjectively consent. The trial judge
failed to consider the issue of consent apart from the issue of capacity and, further,
did not apply the jurisprudence discussing the level of intoxication which could
result in a finding of incapacity. His reasons could be read as equating any degree
of impairment on the part of the complainant with incapacity to consent. While
the convictions could have been sustained on the basis that the complainant did
not consent to the sexual activity regardless of her capacity, the reasons of the trial
judge did not make it clear that he made a finding in that regard, or whether his
statement that she did not consent dealt only with the invalidity of any consent
because of the effects of alcohol.
R. v. Al-Rawi,  N.S.J. No. 18, 2018 NSCA 10, 359 C.C.C. (3d) 237, 44 C.R.
(7th) 148, 145 W.C.B. (2d) 215; R. v. Ewanchuk,  1 S.C.R. 330,  S.C.J.
No. 10, 169 D.L.R. (4th) 193, 235 N.R. 323,  6 W.W.R. 333, J.E. 99-543, 68
Alta. L.R. (3d) 1, 232 A.R. 1, 131 C.C.C. (3d) 481, 22 C.R. (5th) 1, 41 W.C.B. (2d)
122, 1999 CCAN ¶10,007, consd
Other cases referred to
R. v. A. (J.),  2 S.C.R. 440,  S.C.J. No. 28, 2011 SCC 28, 335 D.L.R.
(4th) 108, 417 N.R. 1, J.E. 2011-931, 279 O.A.C. 1, 271 C.C.C. (3d) 1, 84 C.R. (6th)
1, 95 W.C.B. (2d) 792, EYB 2011-191057, 2011 CCAN ¶10,023, 2011EXP-1693; R.
v. Barton,  S.C.J. No. 33, 2019 SCC 33; R. v. Bell,  O.J. No. 1725, 2007
ONCA 320, 223 O.A.C. 243, 74 W.C.B. (2d) 35 [Leave to appeal to S.C.C. refused
 S.C.C.A. No. 351]; R. v. Crespo (2016), 132 O.R. (3d) 287,  O.J. No.