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 relation to any of the four listed factors.  

The other route is that the complainant did not subjectively consent to the sexual activity [FN1] (or that her putative consent was vitiated by force, threat, certain types of fraud, exercise of authority, etc.).  Like unconsciousness, however, incapacity deprives the complainant of the ability to formulate a subjective agreement. [FN2]

As a result, there is no particular order in which a trial judge must consider the issues of whether there was capacity and whether there was subjective consent.

The capacity to consent is a necessary — but not sufficient — precondition to the complainant’s subjective consent. …Thus, when a trial engages both the issues of whether the complainant was capable of consenting and whether the complainant did agree to the sexual activity in question, the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity.

            R. v. G.F., 2021 SCC 20 (CanLII) at para 24.

                             Stuart O’Connell (Barrister/Solicitor)


FN1: Consent is subjective and determined by reference to the complainant’s (not the accused’s) subjective internal state of mind towards the touching, at the time it occurred. At the actus reus stage, consent means that the complainant, in their mind, agreed to the sexual touching taking place. The definition of consent for the purposes of sexual assault is found in s. 273.1(1) of the Criminal Code.

FN2:  See for instance R. v. J.A., 2011 SCC 28. Ongoing, conscious and present consent to the sexual activity in question is required. 


Location: Toronto, ON, Canada

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