Court of Appeal

Judge:

The Honourable Justice Duncan R. Beveridge

Appeal Heard:

November 22, 2017, in Halifax, Nova Scotia

Subject:

Criminal law: test for capacity to consent; duty of a trial judge to consider all of the evidence

Summary:

A young woman was found by the police, unconscious in the rear seat of a taxi.  She was naked from the waist down, her legs propped up on the front seats.  The respondent was turned in his seat, between the complainant’s open legs.  He was seen by the police to be trying to hide the complainant’s urine-soaked pants and underwear between the console and front seat.  The respondent’s zipper was partway down, as were the back of his pants.  The taxi was located far away from any route to the complainant’s home.  The complainant had no memory of getting into the taxi, why it would be located in such a spot, nor of anything that had happened in the taxi.  The complainant did not know the respondent.  The trial judge found as a fact that the respondent had touched the complainant in a sexual manner by removing her pants and underwear, but acquitted the respondent because the Crown had produced “no evidence” of a lack of consent, and he could not determine when she had lost capacity to consent.  The Crown appealed.

Issues:

(1)         Did the trial judge err in law in finding there was no evidence about lack of consent?

(2)         Did the trial judge err in law in his application of the test for capacity to consent?

Result:

The appeal is allowed per the unanimous reasons by Beveridge J.A.  The trial judge erred in law in finding that there was no evidence of lack of consent.  The trial judge ignored or disregarded a substantial body of circumstantial evidence that would permit an inference to be drawn that either the complainant did not voluntarily agree to engage in sexual activity with the respondent or lacked the capacity to do so.  To establish incapacity to consent, the Crown must prove that the complainant did not have an operating mind capable of understanding the nature and quality of the act, the identity of the person with whom the activity is to occur and understanding she could agree or decline to engage in or continue the sexual activity.  The Crown conceded that the trial judge did not err in law when he said “a drunk can consent”.   However, the judge’s application of the test revealed legal error when he equated incapacity only with unconsciousness.

Saunders J.A., in concurring reasons, emphasized that the trial judge's statement “Clearly, a drunk can consent” was correct in law and not the reason for reversal in this case. The pivotal issue was whether, when and to what extent the complainant's level of intoxication had affected her capacity to consent during the 11 minutes she spent in the taxi. The judge erred in failing to conduct that inquiry and failing to address the body of circumstantial evidence that would have informed his analysis.