All About Estates

Can a Drunk Clearly Consent?

By now many are familiar with the story reported in the National Post on March 2, 2017 by Ashley Csanady and the subsequent public outrage and calls for appeal in the Nova Scotia acquittal of a case of alleged sexual assault of a young woman intoxicated in the back of a taxi. For those unfamiliar with the story, a police officer had found the female complainant naked from the breasts down in the back seat of a taxi, extremely intoxicated and unconscious with her legs propped up on the front passenger seat. The accused taxi driver was found with his pants partially down holding the woman’s urine soaked tights and underwear.

The complainant’s blood alcohol level was between 223 and 244 mg of alcohol in 100 mL of blood. In Ontario and the rest of Canada, the maximum legal blood alcohol concentration for driving is 80 mg of alcohol in 100 mL of blood. An expert testified during the trial that the complainant was drunk enough to both forget events and lose track of her surroundings. However, another expert claimed that she may have been capable of being able to direct, ask, agree or consent to any number of different activities.

Nova Scotia Judge Gregory E Lenehan noted that while the complainant was unconscious when the police constable found her and therefore unable to consent, it is unknown when she passed out and that she may have consented to a sexual encounter before losing consciousness and that the prosecutor “failed to produce any evidence of lack of consent.” The judge acknowledged that someone “who is unconscious or so intoxicated as to be incapable of understanding or perceiving the situation that presents itself cannot provide consent under Canadian law; …“this does not mean, however, that an intoxicated person cannot consent to sexual activity, clearly a drunk can consent.”

As pointed out in a column by Christie Blatchford in the National Post the next day, she acknowledges that sexual activity and alcohol consumption are often interconnected and perhaps people can capably consent to sexual activity despite being intoxicated.

Capacity to consent is task or decision specific. Two equally essential cognitive tasks apply to capacity evaluation in respect to the decision making process for the required task:

  1. The ability to understand information relevant to making the decision.
  2. The ability to appreciate the consequences of making the decision or not. Appreciation requires realistic appraisal of risks, benefits and outcome as well as justification of choice.

Capacity is also time and situation/context specific. I suggest that in this case the complainant while severely intoxicated entered into a contractual relationship with the taxi driver to transport her from her original location to a stipulated destination. Ms. Blatchford reported that the duration of that contractual agreement had only been 11 minutes when terminated by the police constable who found the car parked and the complainant unconscious, semi-naked and with the taxi driver displaying evidence of suspected criminal activity. In my opinion, there is no reasonable line of thinking to suggest that the nature of that contractual agreement included any type of personal relationship or sexual contact. There is no situation/context specific aspect of the relationship between the complainant and the taxi driver to even warrant an argument for capacity evaluation in my opinion.

As reported by Joanna Smith of the Canadian Press in the National Post on March 20, 2017, a report from the House of Commons Committee on the Status of Women suggests all judges and RCMP officers should undergo mandatory training on gender-based violence and sexual assault. Similarly, Interim Conservative Leader Rona Ambrose is proposing a private member’s bill known as the JUST Act to ensure lawyers who would become judges are better trained in sexual assault law. I congratulate these efforts.

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About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.


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