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Sexual Assault: Consent and the Requirements of Appellate Review

Sexual Assault: Consent and the Requirements of Appellate Review

By: Andrew Jensen – Windsor Law 23

R v G.F. 2021 Supreme Court of Canada

In this case, two teenagers (“F” and “B”) were charged with sexually assaulting a 16-year-old female during a camping trip. The issue at trial was whether the female, who had consumed alcohol, had consented to the sexual activities that were carried out by F and B. The female complainant and F both testified but presented very different narratives of the events that took place. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication and that the complainant did not agree to the sexual activity. F and B argued that the complainant’s narrative was not credible, that she was not as intoxicated as she had claimed, and that she willingly agreed to participate in the sexual activities. The trial judge accepted the complainant’s evidence and convicted both F and B of sexual assault.

The Court of Appeal rejected the argument that the guilty verdict was unreasonable and concluded that the complainant’s evidence was not demonstrably incompatible with the incapacity to consent. The Court of Appeal also found that the trial judge failed at identifying the relevant factors when assessing whether intoxication deprived the complainant of her capacity to consent. Further, that the trial judge failed to consider the issue of consent first and separately from the issue of capacity. As a result, the Court of Appeal concluded that a new trial was necessary for both F and B.

The respondents (“F” and “B”) argued that incapacity is a vitiating factor that renders subjective consent of no force or effect. They argued that the trial judge erred when he blended the assessment of consent and capacity and failed to assess subjective consent first and separately from the capacity to consent.

The SCC ruled that consent and the capacity to give consent are inextricably joined. This reasoning is distinct from circumstances where a person may provide subjective consent that is not legally effective due to factors such as duress or fraud. When hearing a case on sexual assault, trial judges are under no obligation to evaluate consent and capacity separately, nor are they required to examine these subjects in any particular order.

When a complainant is incapable of consenting, there can be no finding that the complainant voluntarily agreed to the sexual activity in question. The Court rejected the idea that incapacity vitiates rather than prevents subjective consent for three reasons. First, subjective consent requires a complainant to formulate a conscious agreement in their own mind to engage in the sexual act in question. Second, identifying incapacity as a vitiating factor would be inconsistent with s. 273.1(2) of the Criminal Code because incapacity under s. 273.1(2) deprives the complainant of the ability to formulate a subjective agreement. Third, capacity as a precondition to subjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntary agreement to the sexual activity in question.

As capacity is a precondition to subjective consent, it follows that the requirements for capacity are tied to the requirements for subjective consent. Capacity to consent requires that the complainant has an operating mind that is capable of understanding the physical act, its sexual nature, the specific identity of their partner, and that they have the choice of whether to engage in the activity in question. The capacity to consent should be understood as a precondition to consent under s.273.1 of the Criminal Code. Thus, it is possible to find that a complainant can lack capacity to consent all while simultaneously being capable of withholding it.

What does an appellate review of a Sexual Assault case entail?

The SCC affirmed that a trial judge’s reasons need not be perfect and that scrutiny of a trial judge’s reasons is not inconsistent with the role of appellate review. An appellate reviewer’s role is to read and consider a trial judgement in order to assess whether the trial judge recognized and decided the issues so as to explain the verdict to the accused, provide public accountability, and permit meaningful appellate review. To say a trial judge’s reasons are sufficient even where ambiguities leave open the possibility that the judge may have erred would be inaccurate. The presumption that a trial judge knows the law does not negate an appellate reviewer’s duty to insist upon reasons for judgement that show the law was applied correctly in the particular case.

What message is the Supreme Court sending about Appellate review of sexual assault cases?

The Supreme Court in effect complained in this case that despite their clear guidance over the last 19 years to review trial judge’s reasons functionally and contextually, they continue to encounter appellate court decisions that scrutinize the text of trial reasons. The Court opined that these types of decisions are prevalent particularly in sexual assault cases, where according to them “safe convictions” after fair trials are being overturned based on parsing imperfect or summary expression on the part of the trial judge rather than on the basis of legal error. The Supreme Court seemed to be complaining that the appeals in sexual assault cases are often just challenges to credibility findings made at trial under the guise of legal argument relating to the sufficiency of reasons.

The Supreme Court stated that to succeed on appeal, the appellant’s burden is to demonstrate either an error or the frustration of appellate review. Though, neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. If all that can be said is that a trial judge may or might have erred, the appellant has failed to discharge their burden to show actual error or the frustration of appellate review. If ambiguities in a trial judge’s reasons are open to multiple interpretations, interpretations that are consistent with the presumption of correct application must be preferred over those that suggest error. It is only where ambiguities render the path taken by the trial judge unintelligible that appellate review is legitimately frustrated. An appeal court must be rigorous throughout its assessment. It is not enough to say that a trial judge’s reasons were ambiguous — the appeal court must determine the extent and significance of the ambiguity.  The task for appellate courts is not to finely parse the trial judge’s reasons in a search for error, but rather to assess whether the reasons, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review.

Are “Safe Convictions” and “Fair Trials” Really being Overturned?

One of the difficulties in many sexual assault trials is that it is terribly difficult to be confident that a conviction is a “safe conviction”.  The very nature of many sexual assault allegations are that there are no injuries and it is the word of two people with differing accounts and opposing narratives.  Reliability and credibility are often at play which should make achieving convictions in this area of the law often very difficult – for good reason – to avoid wrongful convictions.

The Supreme Court seems to be sending a message to appellate courts across the country that they want less appellate intervention in sexual assault cases.

The fact remains that accused people must put their best foot forward at trial by hiring the best lawyer they can obtain and doing their best to win at trial.

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