R v GF – 2019 ONCA 493 (Pardu):

[25] I do not agree that the nature of the account given by the complainant in itself is demonstrably incompatible with incapacity to consent to sexual relations, or that the trial judge failed to consider this evidence. The complainant’s intermittent awareness, her waking from sleep to find sexual acts performed upon her, her saying no, and her own description of her condition could allow a reasonable trier to conclude beyond a reasonable doubt that she did not consent to the sexual activity or that she was incapable of consenting to the activity.

[26] Complete unconsciousness and absence of memory are not the only conditions which establish incapacity. Varying degrees of awareness, memory, and ability to articulate what happened have supported findings of incapacity: see R. v. Tariq, 2016 ONCJ 614, 343 C.C.C. (3d) 87, at paras. 5, 116, 120-121, 124; R. v. Daigle (1998), 127 C.C.C. (3d) 130 (Que. C.A.), at pp. 133,137, aff’d [1998] 1 S.C.R. 1220; R. v. Bell, 2007 ONCA 320, 223 O.A.C. 243, at paras. 7, 44-46, 48, leave to appeal refused, [2007] S.C.C.A. No. 351; R. v. Wobbes, 2008 ONCA 567, 235 C.C.C. (3d) 561, at paras. 12, 15, 24; R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194, at paras. 23-24, 94-99.

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[37] In R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, Beveridge J.A. discussed elements of capacity to consent to sexual relations established by the jurisprudence, at paras. 60-61, 66-67, and I adopt that summary, subject to the caveat that, in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which a complainant could be found to lack an operating mind:

[60] This begs the question: what constitutes an operating mind? Comatose, insensate or unconsciousness cannot qualify. Major J., in R. v Esau, supra, reflected that being unconscious due to intoxication is not the only state capable of removing a complainant’s capacity to consent (para. 24). Mere awareness of the activity is also insufficient to ground capacity where the trial judge accepted that the complainant was “out of control” and “not able to say no” due to the involuntary ingestion of drugs (R. v. Daigle (1997), 127 C.C.C. (3d) 130 (Que. C.A.), aff’d [1998] 1 S.C.R. 1220).

[61] On the other hand, requiring the cognitive ability necessary to weigh the risks and consequences of agreeing to engage in the sexual activity goes too far.

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[66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:

…1.appreciating the nature and quality of the sexual activity; or
…2.knowing the identity of the person or persons wishing to engage in the sexual activity; or
…3.understanding she could agree or decline to engage in, or to continue, the sexual activity.

[67] In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. As detailed above, these inquiries are entirely subjective. [Citations in original.]

[38]  Here, I agree with the submissions of the Crown on appeal that while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity: R v. C.P., 2017 ONCJ 277, at paras. 69-70, aff’d 2019 ONCA 85, leave to appeal to S.C.C. requested, 38546 (March 11, 2019), [2019] S.C.C.A. No. 50; Tariq, at paras. 5, 116, 120-121, 124; Daigle, at pp. 133, 137; Bell, at paras. 7, 44-46, 48; Wobbes, at paras. 12, 15, 24; L.G., at paras. 23-24, 94-99; R v. Merritt, [2004] O.J. No. 1295 (Ont. Sup. Ct.), at paras. 56-59; R v. Powers, 1999 CanLII 7332 (Ont. C.A.), at paras. 2, 7; R v. Dixon, 2018 ONCA 949, at paras. 3, 17-18; R v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287, at paras. 5, 9. As the case law demonstrates, the trier of fact must consider all the evidence to make the factual determination of the complainant’s capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances, including sleep, intoxication, illness, and intellectual disability.