Capacity to Consent to Sexual Activity
There can be no consent to sexual activity without the capacity to consent. For a complainant to be capable of providing her subjective consent to sexual activity, she must have the capacity to consent , that is, at the time of the sexual activity she must have an operating mind capable of understanding four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant’s partner or partners; and 4. that she has the choice to refuse to participate in the sexual activity. R. v. G.F ., 2021 SCC 20 (CanLII) at para 57. The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. One route for the Crown to establish the third component of the actus reus (absence of consent) is for it prove beyond a reasonable doubt the complainant’s absence of capacity to consent in relatio