On consent and capacity: ‘We actually don’t know where the legal line is’

HALIFAX — At first glance, Canada’s sexual assault law appears to offer judges clear guidance on how to decide whether an alleged victim of sexual assault, under the influence of drugs or alcohol, could be capable of granting consent to sexual activity.

“The law says you cannot obtain valid consent from someone who is incapable of consent,” says Elizabeth Sheehy, a law professor at University of Ottawa and an expert in sexual assault law.

But that’s where many experts say the clarity ends — and the debate begins over the complex issue of intoxication and consent.

Sheehy was responding to the many thorny questions of law — and howls of public outrage — that have arisen since a Halifax taxi driver was found not guilty Wednesday of sexually assaulting a young woman found drunk, unconscious and partially naked in his cab.

“The Criminal Code does not define what (incapable) means. We have to rely on judges to develop the standard for what it means to be incapable of consent for the purposes of sexual contact,” Sheehy said in an interview Friday.

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The Supreme Court of Canada has said anyone who is unconscious is incapable of granting consent. As well, there have been many lower court decisions that have concluded that being intoxicated is not enough to constitute incapacity.

“So the line is somewhere between intoxicated and unconscious — and there is no clear line in there,” said Sheehy, whose appraisal of the law mirrors that of other academics and activists. “We actually don’t know where the legal line is.”

However, the courts have also ruled that the federal law requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to provide that individuals engaging in sex are always able to ask their partners to stop at any point.

That is what advocates mean when they say “only yes means yes.”

Judge Gregory Lenehan said the Crown had failed to prove beyond a reasonable doubt that the woman, in her 20s, did not consent to sexual activity with 40-year-old Bassam Al-Rawi.

Al-Rawi was charged almost two years ago after police found the woman passed out in the back seat of his car, with her legs propped up on the back of the front seats. The woman testified she had no memory of what happened, and the provincial court judge concluded his decision Wednesday by saying, “a lack of memory does not equate to a lack of consent.”

Lenehan also stated: “Clearly, a drunk can consent.”

The judge said even though the complainant couldn’t recall what happened after she left a downtown bar and got into Al-Rawi’s cab on May 23, 2015, she had the presence of mind to argue with a friend, text others and retrieve money from her wallet for the ride home.

“What is unknown is the moment (she) lost consciousness,” said Lenehan. “That is important. It would appear that prior to that she had been able to communicate with others. Although she appeared drunk … she had appeared to make decisions for herself.”

Sheehy said it’s important to note that the woman was found unconscious in the cab only 11 minutes after she got in.

“It’s hard to accept that she was capable of consent at minute nine and incapable of consent at minute 11,” she said. “That defies plausibility.”

During Al-Rawi’s trial, a constable testified that the cab driver was spotted shoving the woman’s pants and underwear between the front seats. As well, his pants were undone around his waist and his zipper was down. The woman’s wallet, purse and shoes were in the front passenger area, and her pants and underwear were tangled inside out and wet with her urine, court heard.

A forensic analyst determined the woman’s blood-alcohol level was as high as 241 milligrams per 100 millilitres of blood — three times the legal limit.

“On the facts, it could be that the judge failed to appreciate the evidence that was before him,” said Sheehy, suggesting that the Crown is probably contemplating an appeal.

Nicole Pietsch, co-ordinator for the Ontario Coalition of Rape Crisis Centres, said the judge was wrong to focus on when the woman became unconscious rather than her level of intoxication

“It sets aside the testimony of the complainant, who said she did not remember — and that she was likely unconscious,” said Pietsch.

“It’s implicit in this (decision) that this victim somehow created this vulnerability and that she was complicit in what happened. That’s not said outright. But you can read between the lines.”

Pietsch said the problem isn’t Canada’s sexual assault laws, it’s the way they are being interpreted.

“The outrage that we’re seeing from the public is a reflection of the fact that it’s obvious, when looking at the scene described (in the decision), that consent could not have occurred from that complainant.”

Last month, interim federal Conservative leader Rona Ambrose introduced a private members bill that would require all new judges to take part in specialized training to ensure they have “recent and comprehensive education in sexual assault law.”

“This is about reassuring Canadians that, should they ever seek justice in court in connection to a sexual assault case, they will be dealing with a judge that is trained,” Ambrose said at the time.

Ambrose’s bill would ensure judges have a firm grasp of what evidence can be used, and the training would also focus on issues of consent, stereotypes and rape myths.

Bill C337 would also make it mandatory for judges to issue written decisions in sexual assault cases. Lenehan’s decision was an oral one.

Wayne MacKay, a law professor at Dalhousie University in Halifax, said he liked Ambrose’s idea, adding that questions have been raised as to whether Lenehan’s choice of words was inappropriate.

MacKay suggested that given the complex nature of sexual assault cases, it may be time to consider setting up specialized courts to handle these thorny cases.

“We have courts that deal with mental disability,” he said. “Is sexual assault a unique enough kind of problem that we should have people with particular expertise in that area?”

As for amending the Criminal Code to better reflect society’s changing standards, MacKay said that would be fraught with difficulty.

“The real question is, how do we balance the rights of the accused and the rights of the victim?” he said. “Any changes to the Criminal Code would have to be somewhat modest because you still have to respect proof beyond a reasonable doubt, you still have to respect that the accused person is to be presumed innocent.”

Michael MacDonald, The Canadian Press