Consent v. Capacity to consent for sexual act

In Her Majesty The Queen v. G.F.,

F and B were charged with sexually assaulting the 16-year-old complainant during a camping trip. The issue at trial was whether the complainant, who had consumed alcohol, had consented to the sexual activity with F and B. The complainant and F both testified and presented diametrically opposed versions of events; B did not testify. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication, and also that the complainant had not agreed to the sexual activity. F and B submitted that the complainant was not credible and that she had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The Trial judge accepted the complainant’s evidence and convicted F and B of sexual assault.
However, the Appellate Court overturned the order.

On appeal the Supreme Court of Canada has clarified that consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. Trial Judges are under no obligation to evaluate consent and capacity separately or in any particular order.

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