Capacity to Consent

The Cab Driver – Incapacity to Consent

This is a follow-up to a blog I posted concerning a case where a cab driver was found with a highly intoxicated patron who essentially had her pants down when a police officer stumbled upon them parked (click here for old blog).

At the trial, the trial judge felt that he was left with a factual vacuum so that he could not decide whether the complainant consented to sexual activity at the crucial time. His comment “that a drunk can consent” was the subject of a significant amount of media attention and scrutiny.

Ultimately the Court of Appeal, R. v. Al-Rawi 2018 NSCA 10, stated that this statement of the law was correct but that the trial judge failed to consider s a significant amount of circumstantial evidence in the case about the complainant’s inability to consent. The trial judge’s judgment that “the Crown had no evidence to present on the issue of consent prior to Constable Thibault arriving on scene” was held wrong. There was evidence on the issue of consent or lack thereof.

The Court concluded that the test for incapacity, remembering that, it is a codified provision of the Criminal Code that “no consent is obtained [if] the complainant is incapable of consenting to the activity” is:

(1)    A person must understand the nature of the specific sexual act in question;

(2)    A person must understand that he or she has a choice as to whether to participate;

(3)    Know the identity of the person they are engaging in the sexual activity with;

In this case there was evidence that she was incapable of consenting at the relevant time including losing consciousness after the police arrived, having a blood alcohol level in excess of 240 mg, urine soaked pants, being found in the opposite direction of her home and no memory of her time in the taxi. A complete list is found at para 94 of the judgment.