Defining consent when intoxicated a complicated issue: lawyer
Published Thursday, March 2, 2017 9:55PM EST
On Thursday, a judge acquitted a Halifax taxi driver of sexually assaulting a young woman who police found drunk, unconscious and naked from the chest down in the back of his cab.
The woman had testified that she had no memory of what transpired that night.
"Clearly, a drunk can consent," Judge Gregory Lenehan said in his controversial decision. “(A) lack of memory does not equate to a lack of consent.”
Toronto criminal lawyer Robb MacDonald, however, says that one’s level of intoxication limits their ability to adequately consent to a sexual encounter.
“The truth is, intoxicated people can give consent in Canada,” MacDonald told CTV News Channel on Thursday. “The issue is their level of intoxication.”
The Supreme Court of Canada, MacDonald said, has been clear that if someone is intoxicated to the point of being unconscious, they cannot legally give consent to a sexual encounter.
“And secondly,” he said, “if they’re not quite at that level of intoxication, but they are so drunk that they cannot really comprehend the nature of the sexual act that they are embarking upon, then again, consent can be vitiated.”
The issue in this case, MacDonald said, is that woman may have consented to a sexual act only to lose consciousness after it had ended. In his decision, Lenehan said that there was no way to prove beyond a reasonable doubt what happened in the taxi.
“The law is clear that if she’s unconscious at the time that the sexual act begins, there’s no consent,” he said. “If at some point during the sexual act, she becomes unconscious, there’s also no consent. But in this case, if she might have been conscious at the time and giving consent… therein lies the issue.”
Had the case been heard in a different jurisdiction, however, MacDonald believes that the outcome may have been very different.
“A lot of jurists -- certainly ones that I’m familiar with in our region here in Toronto -- with the same set of facts, given the circumstantial evidence here, they might very well have found that this was proof beyond a reasonable doubt.”
With files from The Canadian Press