Nova Scotia·In Depth

Does the law say a drunk can consent? The answer is yes

The definition of consent, and what it means to be able to give it, has been a subject of nationwide discussion following a Nova Scotia judge's comments in acquitting a Halifax taxi driver of sexual assault.

A look at what the Criminal Code and courts say about consent and a person's ability to give it

The provincial courthouse in downtown Halifax. (Robert Short/CBC)

The recent acquittal of a Halifax taxi driver accused of sexual assault has sparked debate about consent and how the law handles it.

In his ruling, Judge Gregory Lenehan said the prosecution had not offered any evidence the woman, who was found unconscious in the car by a police officer, had not consented. He has also drawn fire for his comment that "clearly, a drunk can consent."

Nova Scotia's Public Prosecution Service has appealed the acquittal, citing grounds related to the issue of consent.

The definition of consent, what it means to be able to give it and how alcohol factors into the law, has been a subject of nationwide discussion. Here's a closer look at what the law actually says:

What the Criminal Code says about consent

Consent is defined in the Criminal Code as "voluntary agreement of the complainant to engage in the sexual activity in question."

Janine Benedet, a law professor at the University of British Columbia's Peter A. Allard School of Law, puts it this way:

"The question is whether the person in their own mind wanted this sexual activity to take place."

According to the code, no consent is obtained when the agreement comes from someone other than the complainant, the person is incapable of consenting or is induced by the accused abusing a position of trust, power or authority.

Consent also does not exist if someone "expresses, by words or conduct, a lack of agreement to engage in the activity" or if the complainant, who previously consented, expresses "a lack of agreement to continue to engage in the activity."

What the Supreme Court of Canada has said 

According to the decision R v. JA, consent to sexual activity is only possible if the person is conscious during that activity.

In that decision, the court wrote that "when the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs.

"Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter."

What it means to be 'incapable' of consenting

The code says there is no consent where someone is incapable of consenting.

Various factors affect an individual's capacity to voluntarily agree to sexual activity, according to Canadian law. One factor courts sometimes consider is whether the accused was in a position of authority, said Benedet.

"There are provisions in the Criminal Code that talk about consent being vitiated when someone is in a position of trust or authority," she said.

Despite the idea of a position of trust impairing the ability for there to be consent, Benedet said there continues to be debate in the case law about "what kind of relationship really puts you in a position of authority."

What about intoxication and consent?

Intoxication is also considered a factor that affects a complainant's capacity to consent to sexual activity.

But in practice, Benedet said, the threshold of intoxication at which point someone is deemed incapable of consent varies depending on the circumstances.

Where a complainant becomes intoxicated involuntarily, for instance, by being drugged, "courts [tend] to be very generous in terms of what level of intoxication would be sufficient to amount to incapacity."

If a complainant consumes drugs or alcohol by choice, courts have "a very high threshold for incapacity, much higher than they would have applied in those involuntary intoxication cases."

'Clearly, a drunk can consent'

While Lenehan's comment has sparked outrage in much of the public, he's not incorrect according to Canadian case law.

"You can find many criminal decisions that use the line 'a drunken consent is still a consent,' and I do think … Canadian law is reluctant, and in my view too reluctant, to find that intoxication can vitiate consent," said Benedet.