The Palpable Misinterpretation of the Law of Capacity to Consent

The Palpable Misinterpretation of the Law of Capacity to Consent

On behalf of Neuberger & Partners LLP posted in Sexual Assault on Monday March 09, 2020.

The Palpable Misinterpretation of the Law of Capacity to Consent

In 2017, public outrage erupted over the sexual assault acquittal of a Halifax taxi driver after the media headlines denounced the judge for saying “clearly, a drunk can consent.” The Nova Scotia Court of Appeal confirmed that Justice Lenehan was correct in law, though his wording could have been better chosen, but the public continues to believe that the judge was wrong.


When the Nova Scotia Court of Appeal sent Regina v. Al-Rawi back for retrial they confirmed that “it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexual activity despite the expectation that if sober or less impaired they would not have done so.”


While it is well established that a person who is unconscious cannot consent to sexual activity, the point at which capacity to consent is vitiated by intoxication remains highly misunderstood.  Simply being intoxicated and making reckless choices does not make someone incapable of consenting to sexual intercourse.


The “consent culture” being taught to university students does not align with the law on capacity to consent.  While a person must be capable of understanding the sexual nature of the act, only a minimal cognitive function is required.


For example, Carleton University’s website suggests to students on consent training – that “Legally… if the person you’re with has been drinking, they can’t consent to sex (even if they don’t appear to be intoxicated)” and further assert incorrectly that only a “sober” person can consent to sexual activity.


This common misperception about the law due to misinformation campaigns, which are happening at all universities, causes many people to believe what happened to them was a sexual assault when, in fact, they gave legal consent.


The damage done by this misunderstanding of the law is devastating both to the accused and the complainant.


The law of capacity to consent may be still underdeveloped but has consistently maintained, as is the case with Al-Rawi, that only minimal cognitive capacity is required. A lack of memory does not preclude legal consent, it only proves that a complainant cannot remember if she/he consented, and the surrounding events.


Many complainants who find themselves in this situation discover through multiple witnesses that they were doing many uncharacteristic things that night, of which they have no memory. This can include finding out things like dancing on a table, singing at a karaoke bar or possibly waking up in a stranger’s bed who they normally would not find attractive.


Cases where even extreme intoxication exist are rarely successful in court where it can be shown that the complainant voluntarily consumed the alcohol and remained a conscious, active participant throughout the sexual activity.


Men accused of sexual assault where mutual intoxication was involved are often demonized as predatory. This unfair characterization denies the fact that only a complainant knows how drunk she is and, often, not until much later.


It is unfortunate that these cases are increasingly coming before the courts instead of making efforts to properly educate people on the law and spare complainants from the inevitable path down the criminal justice road.  Further, it denies personal responsibility for their own actions despite their intoxication and steps actively taken during the impugned sexual event.


As cited by the Nova Scotia Court of Appeal in Al-Rawi, the accepted law on intoxication and consent remains the same:


“Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self-control. A drunken consent is still a valid consent.” [citations removed].


It is vital that concern for addressing sexual assault allegations not become the crucible in which we skew the law and misinform the public.  Individual responsibility is paramount, and a clear understanding of the legal parameters of what constitutes lack of capacity to consent as a  crucial factor protecting against wrongful convictions that cause damage to the parties involved; to our justice system, and to our society at large.

Share on:

Leave a Reply

You must be logged in to post a comment.



1392 Eglinton Avenue West
Toronto, ON M6C 2E4
Fax (416) 364-3271


On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

How can payments be made?

  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger