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Criminal - Sexual Assault (3). R. v. Rioux [sex consent and incapacity]
In R. v. Rioux (SCC, 2025) the Supreme Court of Canada dismissed a criminal defendant's appeal, this brought against a successful Crown appeal for sexual assault at the Quebec CA, that brought by the Crown against an acquittal.
The court considers sexual consent, here where incapacity is an issue:[80] Where adduced and found to be reliable, a trial judge must consider a complainant’s circumstantial evidence of non-consent or incapacity in cases of memory loss or blackouts. Two decisions from this Court confirm that the Crown may establish the absence of subjective consent through the use of circumstantial evidence in such situations, whether from the complainant or other witnesses, and from times other than when the sexual activity was said to have occurred. This process is really no different from when the Crown tries to meet its burden of proving criminal intent when accused exercise their rights to silence and have not provided any direct evidence of their subjective states of mind (see, e.g., Robinson, at para. 36).
[81] In R. v. James, 2014 SCC 5, [2014] 1 S.C.R. 80 (“James SCC”), this Court confirmed that a new trial was required, in part on the basis that the trial judge had erred by failing to consider all of the circumstantial evidence relating to the complainant’s non-consent. The complainant had consumed a considerable amount of alcohol and smoked cocaine on the date of the offence, and as a result experienced memory blackouts and likely lost consciousness (R. v. James, 2013 BCCA 159, 297 C.C.C. (3d) 106 (“James BCCA”), at paras. 2-11). Although she informed the accused she did not wish to have sexual relations with him (James BCCA, at para. 3), she awoke to find the accused performing a sexual act on her. She pushed him off her, went to the bathroom, and then to the motel office to contact the police, who described her as crying and upset (James BCCA, at paras. 10-11). This Court confirmed that the trial judge incorrectly failed to consider evidence of the multiple times the complainant told the accused she was not interested in having in sexual relations with him, and the complainant’s distraught behaviour when reporting the assault to the police (James SCC, at para. 5).
[82] In Kishayinew, this Court recognized that when the complainant has had a memory loss or blackout, and cannot provide direct evidence of her subjective state of mind at the time of the alleged assault, the only evidence available on subjective consent will be circumstantial evidence. It acknowledged that the main impact of memory loss or blackout on a complainant’s evidence is simply that it can lead to an absence of direct evidence on issues of consent and capacity, but that circumstantial evidence was still relevant (see R. v. Kishayinew, 2019 SKCA 127, 382 C.C.C. (3d) 560 (“Kishayinew SKCA”), at para. 75, per Tholl J.A., dissenting, rev’d on other grounds Kishayinew SCC).
[83] This Court, at para. 1, affirmed the reasons of Tholl J.A. at the Court of Appeal and found that the trial judge’s reasons made it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with the accused. The complainant had consumed a significant amount of alcohol on the night of the offence and experienced two periods of memory blackout, one which encompassed the entire time the sexual act in question took place. She testified at length about the events that happened outside of her memory blackouts, including about her emotional state after the sexual act, her attitude towards the accused, and her beliefs about how she would have acted in the circumstances (Kishayinew SKCA, at paras. 68, 72 and 77).
[84] The Court confirmed that the trial judge correctly considered the complainant’s circumstantial evidence in the context of her memory loss, which permitted an inference that she had not consented to any touching: she was crying and disoriented; she did not want to leave with the accused; she did not consent to his attempted to kiss or touch her; she repeatedly attempted to leave the house; and upon recovering from her blackout, she was frightened, wanted to escape, and felt “weird down below” (Kishayinew, at para. 1).
[85] In a portion of Tholl J.A.’s reasons endorsed by this Court, he confirmed that a complainant’s evidence is not to be treated as unreliable merely because of a memory loss or blackout:... a witness who has suffered memory blackouts cannot testify as to what occurred during periods when he or she has no memory but that factor alone does not render his or her other evidence unreliable. It creates an absence of direct evidence from the witness for the blackout periods but an absence of memory of certain portions of the crucial events does not automatically create an absence of reliability for the witness’s other testimony. [Emphasis in original; para. 75.] [86] This Court has stated that the circumstantial evidence potentially relevant to subjective consent may include the emotional state of the complainant before and after the sexual act (see Kishayinew, at para. 1); the complainant’s attitude towards the accused (see James SCC, at para. 5; see also Fairy v. R., 2024 NBCA 92, 440 C.C.C. (3d) 377, at para. 42); actions of the complainant that are inconsistent with consent (see Kishayinew, at para. 1); and the complainant’s beliefs and assumptions about how they would have acted in the circumstances (see Kishayinew SKCA, at para. 77, dissent aff’d in Kishayinew SCC, at para. 1; see also R. v. Kontzamanis, 2011 BCCA 184, at para. 31; R. v. Capewell, 2020 BCCA 82, 386 C.C.C. (3d) 192, at para. 49; R. v. Olotu, 2016 SKCA 84, 338 C.C.C. (3d) 321 (“Olotu SKCA”), at para. 59, aff’d 2017 SCC 11, [2017] 1 S.C.R. 168; R. v. Tariq, 2016 ONCJ 614, 343 C.C.C. (3d) 87, at para. 70). Other courts have also considered any physical evidence inconsistent with consent (see R. v. D.A., 2018 ONCJ 307, at paras. 49 and 54; R. v. Okemaysim, 2021 SKCA 33, at para. 43; R. v. Trevor, 2006 BCCA 91, 206 C.C.C. (3d) 370, at para. 14; R. v. Czechowski, 2020 BCCA 277, 396 C.C.C. (3d) 435, at paras. 9-12) and any actions of the accused that may be inconsistent with consent (see Trevor, at para. 14; R. v. K. (U.), 2023 ONCA 587, 168 O.R. (3d) 321, at paras. 72-75 and 77; R. v. Scott, 2024 ONCJ 230, at para. 89; see also D.A., at para. 48; R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, at paras. 69-70; Czechowski, at para. 8).
(2) Proving Incapacity
[87] When the complainant’s capacity has been put in issue, the Code’s inter-related provisions about consent in s. 265(3) and legal capacity in s. 273.1 work together and complement each other. A complainant who was conscious and capable of giving consent under s. 273.1(1) can usually provide direct evidence of her state of mind when the sexual activity took place. In such cases, the actus reus of consent will depend upon whether the fact-finder believes her when she states she subjectively did not want the sexual activity to take place (see Ewanchuk).
[88] As this Court confirmed in G.F., subjective consent requires the complainant to be capable of formulating a conscious agreement and understanding each element of the sexual activity (paras. 45 and 55). The question of capacity is thus also subjective, personal to the complainant, and inherently related to the complainant’s internal state of mind at the time of the touching (see paras. 29, 56 and 65; see also Ewanchuk, at paras. 26-27; J.A., at paras. 34, 36 and 43-44). If the complainant can describe her capacity to consent during any part of the sexual activity, that direct evidence is obviously relevant to establish her state of mind and if available and accepted, it may be cogent, compelling and convincing evidence of the level of her capacity to understand all four preconditions to consent outlined in G.F.
[89] More often, however, when the complainant’s capacity to consent is placed in issue, the facts which give rise to an allegation of legal incapacity, including unconsciousness (s. 273.1(2)(a.1) and (b)), may very well mean she cannot testify directly about her consent or capacity to consent when the sexual activity took place (G.F. SCC, at para. 65). Problems with respect to understanding the many potential causes of incapacity, a lack of memory or the inability to articulate her state of mind can be expected and will commonly arise where the complainant is drugged, intoxicated, ill or has certain physical or mental conditions. The evidentiary rules around establishing a person’s ability or inability to consent recognize this reality.
[90] The Crown may meet its burden of establishing incapacity beyond a reasonable doubt by tendering circumstantial evidence. Kishayinew and James recognized that where the complainant has no memory of the sexual act, and thus there is no direct evidence from the complainant about her capacity to understand the necessary elements of the sexual activity in question at the time it occurred, circumstantial evidence may be considered (see R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; R. v. B.S.B., 2008 BCSC 917, aff’d 2009 BCCA 520, 71 C.R. (6th) 306; R. v. R. (J.) (2006), 2006 CanLII 22658 (ON SC), 40 C.R. (6th) 97 (Ont. S.C.J.) (“R. (J.) ONSC”), aff’d 2008 ONCA 200, 59 C.R. (6th) 158 (“R. (J.) ONCA”); Kontzamanis; Olotu SKCA; Capewell; R. v. Way, 2022 ABCA 1, 38 Alta. L.R. (7th) 6).
[91] Relevant circumstantial evidence can come from the complainant, including evidence about how she felt at other points in time, the testimony of any other witness with relevant information, and any documentary proof available.
[92] A complainant may be able to provide direct evidence of her state of mind as to her capacity to consent at other points in time — that is, she can describe how she felt before or after the sexual activity in question. Such evidence would be classified as circumstantial evidence of the complainant’s state of mind regarding her capacity to consent at the legally relevant time of the sexual activity. This is because it invites the fact-finder to draw inferences that she felt the same way and was in a similar state at a different point in time: when the sexual activity in question took place. Where the complainant has memories relating to the time before and after the sexual act, a court must evaluate the credibility and reliability of this evidence (D.A., at para. 47).
[93] Evidence adduced by the complainant relating to what occurred before and after the sexual act is admissible as circumstantial evidence of the complainant’s capacity at the time of the sexual act (see R. (J.) ONSC, at para. 20, aff’d R. (J.) ONCA; J.A., at para. 46). Subsequent circumstantial evidence may also be relevant to the complainant’s state of mind at the time of the sexual activity (F.B.P., at paras. 7-8; I. (C.), at para. 53).
[94] Complainants who experience memory loss can still provide relevant — and even determinative — evidence relevant to incapacity, as they can about consent in fact. In G.F., this Court firmly rejected the accused’s argument that the complainant’s awareness and memory of the sexual activity demonstrated that she was capable of consenting, and confirmed that the complainant’s confused and intoxicated state was evidence of incapacity (paras. 63 and 65; see also R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 34, where the Court confirmed that “[t]he effect of intoxication on a witness’s testimony is not all or nothing”).
[95] In addition, since, as stated in J.A., consent requires “a ‘capable’ or operating mind, able to evaluate each and every sexual act committed” (para. 43), courts must consider evidence of outward signs of impairment when assessing capacity, including: loss of gross motor skills, vomiting, loss of bladder control, and significantly impaired speech (see E. Craig, “Sexual Assault and Intoxication: Defining (In)Capacity to Consent” (2020), 98 Can. Bar Rev. 70, at p. 91; G.F. SCC, at para. 86; R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at paras. 41-44).
[96] Finally, I note that, although proof that the complainant experienced periods of lack of memory alone cannot by itself establish a lack of capacity, it is nonetheless relevant evidence on the issue (G.F. SCC, at para. 86; Kaczmarek, at para. 34; R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244, at para. 65, aff’d 2021 SCC 19, [2021] 1 S.C.R. 679). Memory loss or a “blackout” itself can be considered circumstantial evidence that, when considered with the whole of the evidence, may permit an inference to be drawn about whether a complainant was capable of consent at the relevant time (R. (J.) ONSC, at para. 20, aff’d in R. (J.) ONCA).
[97] Even in cases of complete “blackout”, where there is an absence of direct evidence, the case law supports that a conviction could be sustained based on circumstantial evidence alone (see, e.g., G.F. SCC; F.B.P.; I. (C.); R. v. Evans, 2023 ONCA 365, 88 C.R. (7th) 372; R. v. Kownirk, 2023 NUCA 2, 88 C.R. (7th) 122; Kaczmarek). In such cases of circumstantial evidence, the judge or jury must be satisfied that guilt is the only available inference on the evidence (see Kishayinew; R. v. Green, 2024 ABCA 118).
[98] In sum, when coming to a determination, the court must consider all the relevant evidence to determine whether the complainant lacked the capacity to consent at the time the sexual act occurred (Ewanchuk, at para. 26; J.A., at para. 46; G.F. ONCA, at para. 38, rev’d on other grounds G.F. SCC; Tubongbanua, at paras. 28 and 31-32). When assessing whether the Crown has met its burden to establish incapacity, if the complainant has no recall of the sexual activity in question, the trier of fact is also obliged to consider all credible and reliable circumstantial evidence, whether from the complainant or other witnesses. . R. v. Rioux
In R. v. Rioux (SCC, 2025) the Supreme Court of Canada dismissed a criminal defendant's appeal, this brought against a successful Crown appeal for sexual assault at the Quebec CA, that brought by the Crown against an acquittal.
Here the court considers the actus reus of sexual assault, and it's interaction with the complainant's 'consent' and their incapacity:(2) What the Crown Must Prove To Establish the Actus Reus of Sexual Assault
[61] The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent (Ewanchuk, at para. 25; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 87; G.F. SCC, at para. 25). As there was no dispute that touching of a sexual nature took place at both the park in Magog and the home in Bonsecours, the only part of the actus reus of sexual assault at issue in this appeal is the absence of consent. The legal requirements for establishing non-consent have been clarified over the years, both through legislative amendment and in the jurisprudence.
[62] Consent is accorded a broad definition in the Code at s. 273.1(1) and requires “the voluntary agreement of the complainant to engage in the sexual activity in question”. At the actus reus stage, the question is whether “the complainant, in their mind, agreed to the sexual touching taking place” (G.F. SCC, at para. 29; Ewanchuk, at para. 48; J.A., at para. 23; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 16; Barton, at para. 89; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 44). Subjective consent “relates to the factual findings of the trier of fact about whether the complainant subjectively and voluntarily agreed to the sexual activity in question” (G.F. SCC, at para. 31; see also Stewart, at § 3:5). If there was no such agreement, the actus reus of sexual assault based on non-consent in fact will be established (G.F. SCC, at para. 31).
[63] Section 273.1(2) of the Code further clarifies circumstances in which, in law, consent cannot be obtained. Relevant to this appeal, it provides that “no consent is obtained” if the complainant is unconscious (s. 273.1(2)(a.1)), or if “the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1)” (s. 273.1(2)(b); see also s. 265(3) for other requirements for a valid consent). Whether the complainant’s subjective consent is prevented or vitiated is a question of law (s. 273.1(1.2)).
[64] Section 273.1(2) was amended in 2018 to stipulate that an unconscious person is incapable of consenting. In s. 273.1(2)(a.1) and (b), the Code thus now provides two distinct ways in which no consent would be obtained where a complainant does not have a memory or cannot provide direct evidence relevant to consent: unconsciousness and incapacity for any reason other than unconsciousness. Reading the text of these provisions together in context, and in light of their purpose, it is clear that incapacity under s. 273.1(2)(b) is the broader residual category; that is, a complainant may be incapable of consenting in circumstances other than unconsciousness. Section 273.1(2)(b) thus expressly contemplates a category of persons who are conscious, or may not technically be “unconscious”, but are incapable of providing voluntary agreement to the sexual activity in question.
[65] The Code does not define either the specific state of “unconsciousness” or the separate, more general category of “incapacity”. While this Court has not delineated the content or contours of these separate states, we recognized in G.F. that “[l]ike unconsciousness, incapacity deprives the complainant of the ability to formulate a subjective agreement” (para. 44). In J.A., this Court held that individuals must have the mental capacity to give meaningful consent in law, which at a minimum means that “an individual must be conscious throughout the sexual activity in order to provide the requisite consent” (paras. 3 and 36).
[66] This Court in G.F. examined capacity to consent more generally, clarified its role and foundational concepts, set out important principles, and provided much helpful guidance. Consent and capacity to consent are “inextricably joined” such that subjective consent requires both that the complainant is capable of consent, and does in fact, consent (para. 2). Capacity is a precondition to subjective consent (para. 55). The absence of capacity to consent does not vitiate the complainant’s voluntary agreement to the sexual activity (see paras. 42-47). Instead, capacity to consent is part of what makes the consent voluntary (see para. 56). The Crown may establish the absence of subjective consent by proving either that the complainant was incapable of consenting or that she did not agree to the sexual activity in question (para. 22).
[67] The capacity to consent requires the complainant to understand what is required for subjective consent. To establish capacity, the complainant must have “an operating mind capable of understanding each element of the sexual activity in question” at the time of the touching (G.F. SCC, at paras. 55-56; see also Barton, at para. 88; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 54-57). A complainant who cannot say no, or does not know they have that choice, cannot form subjective consent (G.F. SCC, at para. 56). In G.F., the Court explained that a higher degree of capacity is required to be able to voluntarily agree to sexual activity than it is to refuse it (para. 62). The complainant must be aware and understand she has a choice to engage or refuse the sexual activity (para. 56).
[68] In particular, the complainant must be capable of understanding: (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 the complainant has the choice to refuse to participate in the sexual activity. All four factors must be satisfied for a complainant to have capacity to consent (G.F. SCC, at paras. 57-58). If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of consent and the absence of subjective consent is established at the actus reus stage (para. 58).
[69] In G.F. SCC, the definition of what consent is and when it is not obtained are mutually reinforcing, and both are highlighted as essential components of the law’s insistence on the complainant’s subjective consent. Thus, subjective consent has two components: consent in fact and the capacity to consent. If the Crown establishes, beyond a reasonable doubt, either no consent in fact or an incapacity to consent, the non-consent element of the actus reus of sexual assault will be established (para. 31; see also paras. 32-33).
[70] A further substantive requirement is that “[c]onsent must be present at the time the sexual activity in question takes place” (Criminal Code, s. 273.1(1.1)). The requirement of contemporaneous and continuous consent includes the concurrent capacity to consent and applies to each specific sexual act when it occurs. It has as its foundation respect for a person’s dignity, physical inviolability and equal sexual autonomy. As protected by law, individuals may choose whether or not to engage in sexual activity, which activities are allowed and when and under what conditions the activities may occur; consent may be revoked at any time (s. 273.1(2)(e); see also J.A., at paras. 40 and 43-44). Our law does not recognize advance consent or implied consent (Barton, at para. 99; G.F. SCC, at paras. 44-45 and 56; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at para. 53; Ewanchuk, at para. 31). The entire course of sexual activity need not be blanketed with a single finding of consent, non-consent or incapacity (G.F. SCC, at para. 63).
(3) Distinguishing What the Crown Must Prove From How It Can Be Established
[71] The need for both subjective consent and a voluntary agreement contemporaneous with the sexual activity are cornerstone concepts for the offence of sexual assault. While central to what the Crown must prove, they do not prescribe or limit how they can be established. It is important not to conflate these substantive requirements with the principles of evidence governing their proof. For example, that subjective consent is personal to the complainant does not mean that only direct evidence from the complainant about her state of mind at that time can be relevant to subjective consent. Similarly, that subjective consent must exist at the time the sexual activity occurred does not mean that only evidence about that precise moment in time would be relevant to consent in fact or capacity to consent.
[72] Triers of fact should not blur the object of proof and how it may be established. As stated by Professor Lisa Dufraimont:Subjectivity and contemporaneity are features of the absence of consent on the facts, which is the object of proof. They are not requirements limiting the evidence that goes to consent. One might, however, mistakenly conclude that if consent must be subjective and contemporaneous then the evidence that goes to consent must share those features.
(“Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 323) [73] These important distinctions have often been misunderstood or misapplied. While the Crown must prove a lack of subjective consent to the sexual acts when they occur, the general principle is that direct evidence from the complainant about her state of mind at that precise moment is not required and that evidence regarding periods of time other than the moment of the alleged assault may be relevant. Circumstantial evidence is permitted and evidence of non-consent in fact and/or of an incapacity to consent can also come from sources other than the complainant (Dufraimont, at p. 325; see, e.g., R. v. I. (C.), 2023 ONCA 576, 168 O.R. (3d) 575, at paras. 52-57; R. v. F.B.P., 2019 ONCA 157, at paras. 4-10; R. v. Basra, 2009 BCCA 520, 71 C.R. (6th) 306, at paras. 37-40).
[74] Confusion about the need for subjective and contemporaneous consent, and how they may be proven, often arises in cases like this one, in which the complainant cannot give direct evidence of her subjective consent. Generally, the governing principles of law, about both the substantive requirements of the actus reus and how the Crown may establish them, remain basically the same whether or not the complainant can provide direct evidence of her subjective consent. This is subject to the limitations on direct evidence from an accused regarding the complainant’s subjective state of mind, which I address below.
[75] Apart from this constraint, the Crown may establish non-consent in fact or the incapacity to consent by any combination of direct and circumstantial evidence from any time frame that supports an inference that the complainant did not consent or have capacity at the time of the sexual activity in question. Realistically, when complainants cannot testify, recall or communicate their state of mind at the time of the sexual activity, it can be expected that the legal issues around the actus reus will rest almost exclusively on circumstantial evidence (see I. Grant and J. Benedet, “Capacity to Consent and Intoxicated Complainants in Sexual Assault Prosecutions” (2017), 37 C.R. (7th) 375; Stewart, at § 3:7).
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