Her Majesty The Queen Appellant v. G.F. and R.B., 2021 SCC 20

SUPREME COURT OF CANADA Citation: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801 Appeal Heard: October 14, 2020 Judgment Rendered: May 14, 2021 Docket: 38801 Between: Her Majesty The Queen Appellant and G.F. and R.B. Respondents - and - Criminal Lawyers’ Association of Ontario Intervener Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Reasons for Judgment: (paras. 1 to 104) Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Martin and Kasirer JJ. concurring) Joint Concurring Reasons: (paras. 105 to 124) Brown and Rowe JJ. Dissenting Reasons: (paras. 125 to 148) Côté J.

Her Majesty The Queen Appellant v. G.F. and R.B. Respondents and Criminal Lawyers’ Association of Ontario Intervener Indexed as: R. v. G.F. 2021 SCC 20 File No.: 38801. 2020: October 14; 2021: May 14.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Criminal law — Sexual assault — Consent — Capacity to consent — Complainant testifying to incapacity to consent due to intoxication and to having expressed non-consent to sexual activity — Accused convicted of sexual assault at trial but Court of Appeal ordering new trial — Whether trial judge required to address consent and capacity to consent separately when both at issue — Whether trial judge’s reasons sufficient — Criminal Code, R.S.C. 1985, c.

C-46, ss. 265(3) , 273.1 . F and B were charged with sexually assaulting the 16-year-old complainant during a camping trip. The issue at trial was whether the complainant, who had consumed alcohol, had consented to the sexual activity with F and B. The complainant and F both testified and presented diametrically opposed versions of events; B did not testify. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication, and also that the complainant had not agreed to the sexual activity.

F and B submitted that the complainant was not credible and that she had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The trial judge accepted the complainant’s evidence and convicted F and B of sexual assault. F and B appealed. The Court of Appeal rejected the argument that the verdict was unreasonable, concluding that the complainant’s evidence was not demonstrably incompatible with incapacity to consent.

However, the Court of Appeal found that the trial judge failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent, and failed to consider the issue of consent first and separately from the issue of capacity. As a result, the Court of Appeal concluded that a new trial was necessary for both F and B. Held (Côté J. dissenting): The appeal should be allowed and the convictions restored.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Consent is the foundational principle upon which Canada’s sexual assault laws are based. Consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. Trial judges are under no obligation to evaluate consent and capacity separately or in any particular order.

In the present case, it was open to the trial judge to find both that the complainant was incapable of consenting and did not agree to the sexual activity in question, and he did not err in addressing these issues together in his reasons. Where a complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. In other words, the capacity to consent is a necessary — but not sufficient — precondition to the complainant’s subjective consent.

This is distinct from circumstances where a person may provide subjective consent that is not legally effective due to, for example, duress or fraud. Thus, when a trial engages both the issues of whether a complainant was capable of consenting and whether they did agree to the sexual activity in question, the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity. There are two aspects to the overarching concept of consent.

The first is subjective consent, which relates to the factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity in question, and the second requires that subjective consent also be effective as a matter of law. The Criminal Code sets out a series of factors that will vitiate subjective consent in ss. 265(3) and 273.1(2) . However, these factors do not prevent subjective consent, but recognize that even if a complainant has permitted the sexual activity in question, there are circumstances in which subjective consent will be deemed of no force or effect.

The distinction between preventing subjective consent and rendering it ineffective is important, and the proposition that incapacity vitiates rather than prevents subjective consent must be rejected for three reasons. First, subjective consent requires a complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question, and it follows, as a matter of logic, that the complainant must be capable of forming such an agreement. Second, incapacity as a vitiating factor would be inconsistent with the structure of the Criminal Code , as incapacity under s. 273.1(2) (

b) deprives the complainant of the ability to formulate a subjective agreement. Third, capacity as a precondition to subjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntary agreement to the sexual activity in question. As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent.

Capacity to consent requires that the complainant have an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they have a choice of whether or not to engage in the sexual activity in question.

The trial judge did not err in his treatment of consent. Both the complainant’s capacity to consent and agreement to the sexual activity were at issue. It was open to the trial judge to accept the evidence of incapacity and the evidence that the complainant did not agree to the sexual activity. Both findings went to a lack of subjective consent and did not need to be reconciled with each other, nor approached in any particular order. The trial judge’s reasons were also sufficient. Trial reasons must be both factually and legally sufficient.

Factual sufficiency is concerned with what the trial judge decided and why. Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal. The task for appellate courts is not to finely parse the trial judge’s reasons in a search for error, but rather to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. Despite clear guidance in the 19 years since R. v.

Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869, appellate courts continue to scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or

summary expression on the part of the trial judge. To succeed on appeal, an appellant’s burden is to demonstrate either error or the frustration of appellate review, and neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where ambiguities in a trial judge’s reasons are open to multiple

interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error, as it is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated. A trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial.

Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little evidence beyond the testimony of the complainant and the accused, and articulating reasons for findings of credibility can be more challenging. Such findings must be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between credibility and reliability.

Appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. In the present case, the Court of Appeal did not conduct a functional and contextual reading of the trial judge’s reasons, but rather assessed those reasons removed from the context of the live issues at trial.

The trial judge’s reasons should not be read as equating any degree of intoxication with incapacity, as what was at issue was the extreme degree of intoxication to which the complainant testified. Similarly, the trial judge’s blending of consent and capacity reveals neither an error in law nor insufficient reasons. Capacity was not the only issue at trial, and the trial judge’s reasons can be read as finding both that the complainant was incapable of consenting and that she did not agree to the sexual activity. These findings are not legally contradictory and both were available on the evidence.

Per Brown and Rowe JJ.: There is agreement with the majority that capacity to consent should be understood as a precondition to consent under s. 273.1 of the Criminal Code , and that it is possible to find that a complainant lacked capacity to consent while being capable of withholding consent. There is also agreement with much of the majority’s recounting of the law regarding appellate review for sufficiency of reasons, but disagreement as to the sufficiency of the trial judge’s reasons in this case with respect to the complainant’s capacity to consent.

However, the evidence that the complainant did not consent is overwhelming and the curative proviso should apply. While a trial judge’s reasons need not be letter-perfect, scrutiny of a trial judge’s reasons is not inconsistent with the guidance in Sheppard .

An appellate reviewer’s role is not discharged by giving trial reasons for judgment a once-over-lightly perusal, but by reading and considering a trial judgment in order to assess whether, in light of the evidence and arguments at trial, it shows that the trial judge discerned and decided the live issues so as to explain the verdict to the accused, provide public accountability, and permit meaningful appellate review.

It is inaccurate to say that reasons are sufficient even where ambiguities therein leave open the possibility that the judge may or might have erred, and the presumption that trial judges know the law does not negate the appellate reviewer’s duty to insist upon reasons for judgment that, read together with the record, show that the law was correctly applied in a particular case. In this case, the trial judge’s reasons make clear that he convicted on the basis of incapacity alone, but they do not disclose what standard he applied in deciding that the complainant was incapable of consenting.

While a finding of incapacity was available on the evidence, the evidence could also support the conclusion that the complainant had the cognitive capacity to consent throughout the interaction, and it was crucial that the trial judge satisfy himself that the complainant was intoxicated to the point that she could not provide consent in order to convict F and B on that basis. However, in light of the overwhelming evidence that the complainant did not consent, no other verdict was possible.

Per Côté J. (dissenting): There is agreement with Brown and Rowe JJ. on the law regarding appellate review for sufficiency of reasons, and that the trial judge erred in convicting F and B on the basis of the complainant’s incapacity to consent without explaining both the standard by which he decided incapacity as well as its application to the complainant’s evidence. However, given that credibility was the central issue at trial and the Crown’s case is not otherwise staggering, this is not an appropriate case in which to apply the curative proviso.

The appeal should therefore be dismissed, and the Court of Appeal’s order for a new trial upheld.

Section 273.1(2) (

b) of the Criminal Code plainly shows that incapacity is a circumstance that may vitiate a complainant’s apparent consent. While the proper framework for analyzing consent to sexual activity was succinctly set out in R. v. Hutchinson , 2014 SCC 19 , [2014] 1 S.C.R. 346, it is the Criminal Code which establishes the requirement of a two-step analysis of consent to sexual activity. The first step in the statutory framework is to determine whether the complainant voluntarily agreed to the sexual activity in question ( s. 273.1(1) ), or whether a reasonable doubt is raised in this regard.

If so, the court should then turn to the second step and consider whether this agreement was obtained in circumstances vitiating consent ( ss. 265(3) and 273.1(2) ). In the instant case, the trial judge did not do so, which is an error of law. While trial judges are presumed to know the basic legal principles with which they engage on a regular basis, there must be

an intelligible foundation for their verdicts. The trial judge’s statement in the present case that s. 273.1(2)(

b) applies in instances where acomplainant is intoxicated suggests that his view was that any level of intoxication is sufficient to vitiate consent, and it is not clear thatthis belief did not constitute the basis for his conclusion that there was no consent. Although findings of incapacity or non-consent are nottainted by error simply because of the order in which they are made, the absence of analysis to substantiate the trial judge’s conclusorystatement does not provide the basis for meaningful appellate review.

Furthermore, the trial judge’s error cannot be said to be so minor,so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial that any reasonable judge could not possibly have rendered adifferent verdict if the error had not been made. The complainant’s incapacity was a live issue at trial, and acceptance of her evidence ascredible is insufficient to ground a conviction. Accordingly, the curative proviso should not be applied. Cases Cited By Karakatsanis J. Explained: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; considered: R. v.

Sheppard, 2002 SCC 26, [2002] 1S.C.R. 869; referred to: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. Chase, (SCC), [1987] 2S.C.R. 293; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Park, (SCC), [1995] 2 S.C.R. 836; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Cuerrier, (SCC), [1998] 2 S.C.R.371; R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161; R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714; R. v. Paice, 2005SCC 22, [2005] 1 S.C.R. 339; Saint-Laurent v. Hétu, (QC CA), [1994] R.J.Q. 69; R. v. G.C., 2010 ONCA 451, 266O.A.C. 299; R. v.

Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; R. v. Daigle (1997), (QC CA), 127 C.C.C. (3d) 130, aff’d (SCC), [1998] 1 S.C.R. 1220; R. v. Gagnon, 2006 SCC 17,[2006] 1 S.C.R. 621; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; R. v. Dinardo,2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397;R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Chung, 2020 SCC 8,[2020] 1 S.C.R. 405; R. v.

Burns, (SCC), [1994] 1 S.C.R. 656; R. v. McMaster, (SCC), [1996] 1S.C.R. 740; R. v. Langan, 2020 SCC 33, [2020] 3 S.C.R. 499, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516; R. v. C.L.Y., 2008 SCC 2,[2008] 1 S.C.R. 5; R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514; R. v. Kishayinew, 2020 SCC 34, [2020] 3S.C.R. 502, rev’g 2019 SKCA 127, 382 C.C.C. (3d) 560; R. v. Slatter, 2020 SCC 36, [2020] 3 S.C.R. 392, rev’g 2019 ONCA 807, 148O.R. (3d) 81; R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562; R. v. Mian, 2014SCC 54, [2014] 2 S.C.R. 689; R. v.

Mehari, 2020 SCC 40, [2020] 3 S.C.R. 782; R. v. Howe (2005), (ON CA), 192C.C.C. (3d) 480; R. v. Kiss, 2018 ONCA 184; R. v. Wanihadie, 2019 ABCA 402, 99 Alta. L.R. (6th) 56; R. v. J.M.S., 2020 NSCA 71; R.v. C.A.M., 2017 MBCA 70, 354 C.C.C. (3d) 100; R. v. K.P., 2019 NLCA 37, 376 C.C.C. (3d) 460; R. v. Aird (A.), 2013 ONCA 447, 307O.A.C. 183; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111; R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30; R. v. Roth, 2020BCCA 240, 66 C.R. (7th) 107. By Brown and Rowe JJ. Referred to: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v.

Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v.Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Gagnon, 2006 SCC 17, [2006] 1S.C.R. 621; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. By Côté J. (dissenting) R. v. L.K.W. (1999), (ON CA), 126 O.A.C. 39; R. v. Burns, (SCC), [1994] 1 S.C.R. 656;R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Khan, 2001 SCC 86, [2001] 3S.C.R. 823; R. v. Perkins (T.), 2016 ONCA 588, 352 O.A.C. 149; R. v. Raghunauth (G.) (2005), (ON CA), 203O.A.C. 54.

Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C-46, ss. 265, 273.1, 686(1)(b)(iii). Authors Cited Benedet, Janine, and Isabel Grant. “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, andMistaken Belief” (2007), 52 McGill L.J. 243. Black’s Law Dictionary, 11th ed. by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “credibility”. Ferguson, Gerry A., and Michael R. Dambrot. CRIMJI: Canadian Criminal Jury Instructions, 4th ed. Vancouver: Continuing LegalEducation Society of British Columbia, 2005 (loose-leaf updated November 2019).

McWilliams’ Canadian Criminal Evidence, vol. 3, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto:Thomson Reuters, 2019 (loose-leaf updated 2020, release 4). Sharpe, Robert J. Good Judgment: Making Judicial Decisions. Toronto: University of Toronto Press, 2018. APPEAL from a judgment of the Ontario Court of Appeal (Watt, Pardu and Nordheimer JJ.A.), 2019 ONCA 493, 146 O.R.(3d) 289, 378 C.C.C. (3d) 518, 55 C.R. (7th) 437, [2019] O.J. No. 3106 (QL), 2019 CarswellOnt 9555 (WL Can.), setting aside theconvictions for sexual assault entered by Koke J., 2016 ONSC 3465, [2016] O.J.

No. 4256 (QL), 2016 CarswellOnt 12943 (WL Can.),and ordering a new trial. Appeal allowed, Côté J. dissenting. Philippe Cowle, for the appellant.

Alison Craig and Riaz Sayani, for the respondents. Peter Sankoff, for the intervener. The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ. was delivered by [1] Karakatsanis J. — Consent is the foundational principle upon which Canada’s sexual assault laws are based. Fordecades, this Court has recognized that “control over who touches one’s body, and how, lies at the core of human dignity andautonomy”: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 28. As such, the contours of consent are carefullydelineated and jealously guarded.

It is now indisputable that consent is a subjective state of mind, entirely personal to the complainant.There is no room for implied consent in Canada, and the range of mistaken beliefs an accused may lawfully hold about thecomplainant’s consent are tightly restricted by the Criminal Code, R.S.C. 1985, c. C-46. [2] This appeal provides the Court with an opportunity to clarify the relationship between consent and the capacity togive consent. In my view, capacity and consent are inextricably joined.

Subjective consent to sexual activity requires both that thecomplainant be capable of consenting and does, in fact, consent. [3] The respondents take a different view, and argue that incapacity is a vitiating factor that renders subjective consentof no force or effect. Accordingly, they argue that the trial judge erred by blending his assessments of consent and capacity and byfailing to assess subjective consent first and separately from the capacity to consent. [4] I do not agree.

Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does atrier of fact need to go further and ask whether that consent is otherwise vitiated. Vitiation was not at issue in this case; the only liveissue was whether the complainant subjectively consented. The Crown argued that subjective consent was absent for two reasons: thecomplainant was incapable of consenting and she did not agree to the sexual activity in question.

The trial judge was under no obligationto evaluate these two issues separately or in any particular order. [5] Nor did the trial judge err by failing to review the jurisprudence on when intoxication results in incapacity toconsent. In the Court of Appeal’s view, the trial judge’s reasons could be read as equating any degree of intoxication with incapacity toconsent. Obviously, such an equation would be an error in law.

However, in the context of this trial, no such reading was available.Given that the trial judge accepted the complainant’s testimony of her extreme intoxication, “any degree of intoxication” was not a liveissue. This Court has consistently reiterated the importance of a functional and contextual reading of the trial judge’s reasons. The duty ofthe appellate court is to determine whether the aggrieved party understands what the trial judge decided and why, and whether thereasons permit appellate review. In this case, the trial judge’s reasons were sufficient to satisfy this purpose.

I would also take thisopportunity to discourage the technical search for error and to re-affirm the importance of approaching a trial judge’s reasons withsensitivity to the trial judge’s role and advantage in making findings of fact and credibility. [6] I would therefore allow the Crown’s appeal and restore the convictions. I. Background [7] The complainant, 16 years old at the time, went on a camping trip for the 2013 Canada Day weekend with herfamily and her mother’s co-workers.

Two of those co-workers were G.F. and R.B., common-law spouses and the respondents in thiscase. [8] On the final night of the camping trip, the respondents engaged in sexual activity with the complainant. The issue attrial was whether this sexual activity was consensual. The complainant and G.F. both testified and presented diametrically opposedversions of events. R.B. did not testify. [9] The complainant testified that she drank heavily throughout the night, consuming between 8 and 10 shots in total.Almost all of this alcohol was provided by G.F.

She testified that G.F. gave her alcohol while the group was sitting around a campfire.She felt nauseous and went to lay down in the respondents’ trailer, where G.F. continued to give her more alcohol. She vomitedrepeatedly and the last thing she remembered before the assault was playing with her phone until she eventually passed out or fell asleep.She was woken up when she felt her pants and underwear being pulled down. She heard G.F. tell R.B. to perform cunnilingus on her,which R.B. did while G.F. held her down.

G.F. then inserted his penis into the complainant’s vagina and directed the complainant toperform cunnilingus on R.B., which she did not do. The complainant testified that she felt dizzy, intoxicated, scared, and repeatedly toldthe respondents to stop. G.F. told her to “be quiet”. She did not call for help because she was sick, confused, and felt out of control. Shetestified that she did not feel able to make a choice of whether or not to participate. She tried to push away for a bit but got tired and then“just went along with it”. Eventually, she passed out again.

She disclosed the assault to her aunt the next day. [10] In contrast, G.F. testified that the complainant was not very intoxicated. He said he gave the complainant a beer andtwo half-ounce shots of alcohol by the fire but nothing in the trailer. He agreed that the complainant vomited but said that she told himshe felt “fine” afterwards. He went fishing and then returned later that night to find the complainant lying in bed naked next to R.B. Heasked the complainant to leave but the complainant said she wanted to stay.

He testified that the complainant and R.B. began to kiss andthat the complainant allowed him to rub her thigh. The three of them then participated in consensual oral and vaginal intercourse. G.F.testified that he asked for and received assurances, at least seven times, that the complainant was consenting to the sexual activity. [11] In sum, the complainant’s testimony portrayed an extremely intoxicated 16-year-old who awoke to sexual acts beingperformed on her, who resisted but then acquiesced, thinking she did not have any choice in the matter.

G.F. described the complainantas a sober, active, and enthusiastic participant. A. Trial Decision, 2016 ONSC 3465 (per Koke J.) [12] The trial Crown invited the trial judge to treat this as a case of credibility. He argued that the trial judge did not need

to “delve into degrees of intoxication versus sobriety” because he was presented with a stark choice: accept the complainant’s evidence,which would clearly establish incapacity, or accept G.F.’s evidence, which would clearly establish capacity. He also argued that thecomplainant did not agree to the sexual activity. [13] The respondents argued that the complainant was not credible. They submitted that the complainant was not asintoxicated as she claimed and certainly not so intoxicated as to be incapable of consenting.

Most of their submissions, however, focusedon the argument that the complainant agreed to engage in the sexual activity. [14] The trial judge accepted the complainant’s evidence and convicted the respondents, finding that the complainant“did not consent to the sexual activity”: para. 52 . He found the complainant’s evidence to be internally consistent andcorroborated by other evidence. In contrast, he found that G.F.’s evidence was “riddled with inconsistencies”: para. 54.

After explainingthese inconsistencies and rejecting other defence arguments, the trial judge concluded his decision, at paras. 71-73: [R.B.] did not testify. I find [G.F.’s] evidence to be unbelievable. It does not leave me with reasonable doubt as to his or [R.B.’s] guiltand in my view, the balance of the evidence at trial convincingly supports the conclusion that [G.F.] and [R.B.] forced [the complainant]into having non-consensual sex.

Section 273.1(2)(

b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to theactivity. This applies in instances where a complainant is intoxicated. Accordingly, I find the two accused guilty of sexual assault as charged. B. Appeal Decision, 2019 ONCA 493, 146 O.R. (3d) 289 (per Pardu J.A., Watt and Nordheimer JJ.A. concurring) [15] G.F. and R.B. appealed to the Court of Appeal for Ontario. G.F.’s factum argued that the verdict was unreasonablebecause the complainant’s awareness and memory of the sexual activity demonstrated that she was capable of consenting.

R.B.’s factumraised further grounds of appeal: that the trial judge erred in not declaring a mistrial; and that the trial judge unevenly scrutinized theevidence. [16] The Court of Appeal rejected G.F.’s argument that the verdict was unreasonable, concluding that the complainant’sawareness and memory were not “demonstrably incompatible with incapacity to consent” (para. 25) and that the trial judge properlyconsidered this evidence. However, it found that a new trial was required for related reasons. [17] The Court of Appeal found two related errors in the trial judge’s reasons.

First, he failed to identify the relevantfactors to consider when assessing whether intoxication deprived the complainant of her capacity to consent. As such, his reasons “maybe read as equating any degree of impairment by alcohol with incapacity”: para. 2. Second, the trial judge failed to consider the issue ofconsent first and separately from the issue of capacity. [18] The Court of Appeal held that when both consent and incapacity to consent are at issue, the trial judge should firstconsider whether the complainant did not provide consent.

Only if the complainant did consent or if there is a reasonable doubt about thelack of consent is the trial judge required to ask whether that consent was vitiated by incapacity. The Court of Appeal viewed thisCourt’s decision in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, as mandating this two-step process. [19] The Court of Appeal found that the trial judge failed to follow this two-step process and that it was unclear whetherhe considered the issue of consent separately from the issue of capacity at all. As a result, the Court of Appeal concluded that a new trialwas necessary for both G.F. and R.B.

The Court did not address R.B.’s other grounds of appeal. II. Analysis [20] This appeal raises four issues: 1. Did the trial judge err in his assessment of consent and capacity? 2. Were the trial judge’s reasons sufficient? 3. Did the Court of Appeal breach the rules of natural justice? 4. Do R.B.’s other arguments demonstrate any error? A.

Did the Trial Judge Err in his Assessment of Consent and Capacity? [21] The first and primary issue in this case concerns the relationship between consent and capacity and whether it was anerror for the trial judge to address these concepts together throughout his reasons. [22] At issue at trial was whether the complainant consented to the sexual activity. The trial Crown argued that consentwas absent because the complainant both did not consent and was incapable of consenting. Acceptance of either argument wouldestablish the absence of consent and therefore the actus reus of sexual assault.

Before this Court, the Crown submits that the trial judgedid not, therefore, err by addressing consent and capacity together throughout his reasons. [23] The respondents, however, argue that incapacity vitiates the complainant’s voluntary agreement to the sexualactivity in question. As such, the trial judge needed to engage in the two-step process set out by Hutchinson, first determining if the

complainant actually consented, and only then proceeding to consider whether that consent was vitiated by incapacity. The respondentsargue that, by blending his assessments of consent and capacity throughout his reasons, the trial judge erred in failing to follow this two-step process. [24] I cannot agree. In my view, where the complainant is incapable of consenting, there can be no finding of fact thatthe complainant voluntarily agreed to the sexual activity in question. In other words, the capacity to consent is a necessary — but notsufficient — precondition to the complainant’s subjective consent.

As I shall explain, this is distinct from circumstances where a personmay provide subjective consent that is not legally effective, due to, for example, duress or fraud. Thus, when a trial engages both theissues of whether the complainant was capable of consenting and whether the complainant did agree to the sexual activity in question,the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’ssubjective consent to sexual activity.

(1) The Role of Consent in the Offence of Sexual Assault [25] The actus reus of sexual assault requires the Crown to establish three things: (

i) touching; (ii) of an objectivelysexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, (SCC), [1987] 2 S.C.R.293. The first two elements are determined objectively, while the third element is subjective and determined by reference to thecomplainant’s internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that(

i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was recklessor wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused’s perception of consent is examined as part of themens rea, including the defence of honest but mistaken belief in communicated consent: R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579,at para. 90. [26] This appeal concerns the third element of the actus reus, requiring the absence of consent. [27] Parliament has provided a broad definition of consent for the purposes of sexual assault, sexual assault with aweapon or causing bodily harm, and aggravated sexual assault in s. 273.1(1) of the Criminal Code: Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question. [28] This definition is subject to two other provisions in the Criminal Code, ss. 273.1(2) and 265(3): No consent obtained 273.1

(2) For the purpose of subsection (1), no consent is obtained if (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. Consent 265

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. [29] Turning first to s. 273.1(1), consent is defined as “the voluntary agreement of the complainant to engage in thesexual activity in question”. This Court’s jurisprudence establishes that whether or not the complainant consented is a purely subjectiveanalysis, determined by reference to the complainant’s internal state of mind at the time of the touching: Ewanchuk, at paras. 26-27; R. v.J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 34 and 43-44.

At the actus reus stage, consent means that the complainant, in theirmind, agreed to the sexual touching taking place: Ewanchuk, at para. 48; J.A., at para. 23; R. v. Park, (SCC), [1995] 2S.C.R. 836, at para. 16, per L’Heureux-Dubé J.; Barton, at para. 89; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 44.Consent requires “the conscious agreement of the complainant to engage in every sexual act in a particular encounter”: J.A., at para. 31;see also para. 34. Furthermore, consent is not considered in the abstract but rather must be linked to the sexual activity in question.

InHutchinson, the Court explained that “the sexual activity in question” involves only the physical act, its sexual nature, and the specific

identity of the complainant’s partner or partners: paras. 54-57. To provide consent, therefore, the complainant must subjectively agree tothe act, its sexual nature, and the specific identity of their partner or partners: Barton, at para. 88. [30] This Court’s jurisprudence is replete with a variety of terms to refer to different aspects of consent. While theCriminal Code simply speaks of “consent” (ss. 265 and 273.1(1)), this Court has variously talked about “meaningful consent” (J.A., atpara. 36), “true consent” (R. v.

Cuerrier, (SCC), [1998] 2 S.C.R. 371, at para. 127), “apparent consent” (Ewanchuk, atpara. 36; Hutchinson, at para. 4), and “subjective consent” (Hutchinson, at para. 37). [31] As I will explain, there are two aspects to the overarching concept of consent, the absence of which is an essentialelement of the offence of sexual assault. The first is what this Court has called “apparent consent” or “subjective consent”: seeHutchinson, at paras. 4 and 37. That aspect relates to the factual findings of the trier of fact about whether the complainant subjectivelyand voluntarily agreed to the sexual activity in question.

If the trier of fact finds that there was no such agreement, the actus reus ofsexual assault will be established. [32] While this Court has previously used “subjective consent” and “apparent consent” seemingly interchangeably, theterm “apparent consent” is not consonant with the fact that consent is a subjective assessment of the complainant’s personal state ofmind. Considerations of what may be “apparent” are not relevant, coming dangerously close to reinjecting into our sexual assault law thelong rejected concept of implied consent.

I prefer the term “subjective consent” which more accurately conveys what is required by theCriminal Code and our jurisprudence for a complainant, in their own mind, to provide “voluntary agreement . . . [to] the sexual activityin question”. [33] If the complainant did not subjectively consent (for whatever reason) then the actus reus is established. However,the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result in anacquittal.

There is a second aspect to “consent” for the purposes of the actus reus of sexual assault — subjective consent must also beeffective “as a matter of law”: Ewanchuk, at paras. 36-40; see also R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161, at para. 15.Another way of framing that question is to ask whether the subjective consent has been vitiated. [34] Whether subjective consent will not be legally effective is ultimately a matter of policy. The law steps in to say thatdespite the complainant’s subjective agreement, it will not be given legal effect.

Sometimes, the policy that vitiates consent comes from the common law.[1] Other times, the policy is codified. In the context of sexual assault, the Criminal Code sets out a series of factors thatwill vitiate subjective consent in ss. 265(3) and 273.1(2). [35] Section 265(3) sets out four factors that will vitiate subjective consent to sexual activity. Subjective consent will notbe given legal effect where it is the product of force, threats or fear of force, certain types of fraud, or the exercise of authority:s. 265(3)(

a) to (d).

Section 273.1(2)(

c) also vitiates subjective consent where the complainant is induced into sexual activity by theaccused abusing a position of trust, power, or authority: Hutchinson, at para. 4. When subjective consent is the product of these factors,the complainant has been deprived of control over who touches their body, and how, and there is no consent in law: Ewanchuk, atparas. 28 and 37-39; Saint-Laurent v. Hétu, (QC CA), [1994] R.J.Q. 69 (C.A.), per Fish J.A. [36] However, these factors do not prevent subjective consent.

Rather, they recognize that even if the complainant haspermitted the sexual activity in question, there are circumstances in which that subjective consent will be vitiated — deemed of no forceor effect. The distinction between preventing subjective consent and rendering it ineffective may be subtle, but it is important. A factorthat prevents subjective consent must logically be linked to what subjective consent requires.

Conversely, a factor that vitiates subjectiveconsent is not tethered to the conditions of subjective consent and must find footing and justification in broader policy considerations. [37] The example of fraud demonstrates this distinction. Depending on the type, fraud can do one of three things: it canprevent subjective consent, it can vitiate subjective consent, or it can simply not relate to the legal analysis of consent at all. [38] Fraud that prevents subjective consent must be inherently linked to the conditions of subjective consent.

Forexample, subjective consent requires agreement to the act being done by the specific person the complainant thinks is doing it:Hutchinson, at para. 57. If, as a result of fraud, the complainant engages in sexual activity with someone other than the person they thinkthey are with, then there is no subjective consent because the conditions for subjective consent are not met: Hutchinson, at paras. 57-63.However, at the actus reus stage, a simple mistake has the same effect.

A complainant does not consent “to the sexual activity inquestion” when the complainant mistakenly engages in sexual activity with the wrong person: see, e.g., R. v. G.C., 2010 ONCA 451, 266O.A.C. 299, at paras. 20-24. [39] Fraud that is not tied to the conditions for subjective consent cannot logically prevent subjective consent fromforming but can vitiate subjective consent. Thus s. 265(3)(

c) captures fraud that relates to something other than the “sexual activity inquestion”: Hutchinson, at para. 55. As a matter of criminal policy though, fraud that vitiates consent is held to a far higher standard thanfraud that prevents consent.

While fraud preventing consent is interchangeable with a mistake, fraud will only vitiate consent where itentails the “reprehensible character of criminal acts”: Cuerrier, at para. 133; see also Hutchinson, at para. 42. [40] If a fraud is not linked to the conditions for subjective consent and does not entail the reprehensible character ofcriminal acts, then it will not affect the legal analysis of consent in any way.

That is why lying about matters such as one’s profession ornet worth may be immoral, but it is not criminal: Cuerrier, at paras. 133-35. [41] Fraud thus demonstrates the distinction between factors that prevent subjective consent, factors that vitiate it, andfactors that do not relate to the legal analysis of consent. To prevent subjective consent, the factor must prevent a condition of subjectiveconsent from being satisfied. If it does not then it can only vitiate consent, which entails questions of broad criminal law policyuntethered from the conditions of subjective consent.

If the answers to those questions do not justify the heavy hand of the criminal lawthen the factor does not relate to the legal analysis of consent. [42] The respondents, with the support of the intervener, argue that incapacity vitiates rather than prevents subjective

consent. I reject this proposition for three reasons. [43] First, capacity must be understood as a precondition to subjective consent as a matter of logic. Subjective consentrequires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question: J.A., atparas. 31, 36 and 45; Barton, at para. 88. It naturally follows that the complainant must be capable of forming such an agreement. [44] Second, incapacity as a vitiating factor would be inconsistent with the structure of the Criminal Code.

The definitionof consent for the purposes of sexual assault in s. 273.1(1) is “[s]ubject to” ss. 265(3) and 273.1(2), which set out circumstances where“no consent is obtained”. Section 265(3) is a purely vitiating provision, whereas s. 273.1(2) is multi-faceted, primarily serving to clarifythe broad definition of “consent” in s. 273.1(1): J.A., at para. 29. Only s. 273.1(2)(

c) vitiates consent, where the complainant’s inducedagreement by reason of an abuse of power, trust, or authority is deemed ineffective in law: Hutchinson, at para. 4; R. v. Snelgrove, 2019SCC 16, [2019] 2 S.C.R. 98, at paras. 3-4. The other factors in s. 273.1(2) appear to clarify what subjective consent requires. It cannot besaid that a complainant who expresses a lack of agreement has subjectively consented: s. 273.1(2)(

d) and (e). Similarly, there can be nosubjective consent to vitiate if the agreement comes from a third-party rather than the complainant: s. 273.1(2)(a). In J.A., this Court, indetermining that the agreement must be contemporaneous to the touching, rejected the suggestion that unconsciousness, under what isnow s. 273.1(2)(a.1), vitiates consent: para. 33. In my view, incapacity under s. 273.1(2)(

b) is another clarifying provision. Likeunconsciousness, incapacity deprives the complainant of the ability to formulate a subjective agreement: J.A., at para. 33. Anincapacitated complainant cannot provide voluntary agreement to the sexual activity in question and therefore cannot provide subjectiveconsent. [45] The third and final reason comes from the need for certainty in the criminal law. Capacity as a precondition tosubjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntaryagreement to the sexual activity in question.

Capacity to consent requires that the complainant be capable of understanding what isrequired for subjective consent — no more, no less. [46] Conversely, incapacity as a vitiating factor would bring with it a host of uncertainties. Untethered from theconditions for consent, an incapacity assessment would need to say that even though the complainant voluntarily agreed to the sexualactivity in question, at some undefined point their decision-making process was so impaired that subjective consent was no longereffective.

This would inject significant uncertainty into the task of establishing the actus reus of sexual assault; the blunt tool of thecriminal law is poorly suited to such a delicate task as determining at what point a complainant has made an impaired but free andvoluntary choice. Further difficulties and uncertainty would arise at the mens rea stage where the accused’s awareness of thecomplainant’s impaired decision-making process would need to be assessed. [47] For these reasons, it must be that the capacity to consent is a precondition to subjective consent. It is not a matter ofvitiation.

If the Crown proves beyond a reasonable doubt that the complainant did not have an operating mind capable of consenting, ordid not agree to the sexual activity in question, then the Crown has proven a lack of subjective consent and the actus reus is established. [48] Despite these reasons why capacity to consent must be understood as a precondition to subjective consent, the Courtof Appeal, like the respondents and the intervener, understood incapacity to be a vitiating factor.

As such, they relied on Hutchinson forthe proposition that a trial judge must consider whether the complainant provided subjective consent first and separately from the issueof the complainant’s capacity to consent. Specifically, they read para. 4 of Hutchinson as setting out a “two-step process” that the trialjudge must follow. [49] Paragraph 4 of Hutchinson does not relate to incapacity in any way. That paragraph reads as follows: The Criminal Code sets out a two-step process for analyzing consent to sexual activity.

The first step is to determine whether theevidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s.273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to considerwhether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which thelaw deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36.

Section273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s.265(3)(

a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(

d) and 273.1(2)(c)). [50] This introductory paragraph does not contain any novel or controversial propositions of law. The sequentialoperation of subjective consent (“apparent consent”, in the language of Hutchinson) and whether that subjective consent is effective inlaw has always formed the common law of assault and is continued by the Criminal Code: R. v. Jobidon, (SCC), [1991]2 S.C.R. 714, at pp. 731-32. Paragraph 4 of Hutchinson is merely summarizing the process that “[t]he Criminal Code sets out”.

It isnothing more than a concise description of the two aspects of consent when both subjective consent and effective consent are at issue.Hutchinson dealt with whether fraud by sabotaging a condom related to the “sexual activity in question” such that there was nosubjective consent — or whether it vitiated consent. It has nothing to do with incapacity, does not engage in the issue, and does notsuggest that incapacity to consent must be viewed as a vitiating factor. [51] Further, Hutchinson does not mandate that the different aspects of subjective consent be considered in any rigidorder.

While a complainant logically must be capable of consenting before there can be a factual finding that they did consent, a trialjudge may be faced with evidence that the complainant was incapable of consenting and also did not agree to the sexual activity inquestion, and a finding of either will establish a lack of subjective consent. While in some cases it may be more respectful of acomplainant’s dignity to first address whether the complainant agreed to the sexual activity in question (see J. Benedet and I.

Grant,“Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief” (2007), 52McGill L.J. 243, at p. 270), there is no strict requirement for a trial judge to consider one before or after the other. [52] Similarly, Hutchinson should not be read as imposing a strict order-of-operations upon triers of fact whenconsidering both subjective consent and whether that consent is effective in law.

While it may usually make analytical sense to considersubjective consent first and legal effectiveness second, a trial judge will not necessarily err if they do not follow this order. There may be

clear evidence that any subjective consent is vitiated. For example, if a complainant is forced into sexual activity by threats of violence,it would hardly be reversible error for a trial judge to find that there could not be effective consent in law, even if there was subjectiveconsent. [53] In sum, a finding of subjective consent requires both that the complainant was capable of consenting and did agree tothe sexual activity. Finding that a complainant was either incapable of consenting or did not agree to the sexual activity in question willestablish a lack of subjective consent.

These two aspects of subjective consent do not need to be considered in any rigid order. Only ifsubjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go on and ask whether thatconsent was vitiated. [54] The question of whether a complainant had the capacity to consent will not always be at issue; nor will the questionof whether subjective consent was vitiated always be at issue. Such questions are driven by the facts and context of each individual case.

(2) The Four Requirements for Capacity [55] As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements forsubjective consent itself. Since subjective consent must be linked to the sexual activity in question, the capacity to consent requires thatthe complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, itssexual nature, and the specific identity of their partner: Barton, at para. 88; Hutchinson, at paras. 54-57. [56] There is one further requirement.

Because subjective consent requires a “voluntary agreement”, the complainantmust be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: Criminal Code,s. 273.1(1). At the very least, a voluntary agreement would require that the complainant exercise a choice to engage in the sexual activityin question. In this narrow sense, in order to voluntarily agree to the sexual activity in question, the complainant must understand thatsaying “No” is an option.

In J.A., this Court held that consent requires that the complainant have “an operating mind” at the time of thetouching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43-44. Thus, an unconsciouscomplainant could not provide contemporaneous consent. It follows that where the complainant is incapable of understanding that theyhave this choice to engage or refuse to engage, they are incapable of consenting.

Accordingly, a complainant who is unable to say no, orwho believes they have no choice in the matter, is not capable of formulating subjective consent: see R. v. Al-Rawi, 2018 NSCA 10, 359C.C.C. (3d) 237, at para. 60, citing R. v. Daigle (1997), (QC CA), 127 C.C.C. (3d) 130 (Que.

C.A.), aff’d (SCC), [1998] 1 S.C.R. 1220. [57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable ofunderstanding four things: 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 they have the choice to refuse to participate in the sexual activity. [58] The complainant will only be capable of providing subjective consent if they are capable of understanding all fourfactors.

If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjectiveconsent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent waseffective in law because there would be no subjective consent to vitiate.

(3) Application [59] Based on their view that incapacity is a vitiating factor and their understanding of Hutchinson, the respondentssubmit that the trial judge erred in failing to consider consent and capacity separately and sequentially. As I have explained, I do notaccept either of these propositions. Nor do I accept that the trial judge erred in his treatment of consent in this case. [60] Both the complainant’s capacity to consent and agreement to the sexual activity were at issue here. The trial judgewas faced with evidence of incapacity to consent.

Most significantly, the complainant testified that she drank heavily throughout thenight, was passed out when the sexual activity began and, while she struggled briefly, she gave up as she thought she had no choice inthe matter. The trial judge was also faced with evidence that the complainant did not agree to the sexual activity as the complainanttestified that she tried to push away from the respondents and repeatedly told them to stop. It was open to the trial judge to accept theevidence of incapacity and the evidence that the complainant did not agree to the sexual activity.

Hutchinson did not require these to beaddressed separately or in any particular order. [61] The respondents argued here, as they argued below, that the trial judge’s error went beyond blending his consent andcapacity assessments — they argue that he could not find both that the complainant was incapable of consenting and that she did notagree to the sexual activity. They argue that these findings are “mutually exclusive” and a complainant who is incapable of consenting isnot capable of withholding agreement to sexual activity.

I do not agree for two reasons. [62] First, I am not convinced that these findings are mutually exclusive at the theoretical level. In my view, the capacityto consent requires a higher level of understanding than the capacity to withhold consent. As discussed, the capacity to consent is acumulative assessment, requiring the degree of understanding necessary to appreciate all the conditions of subjective consent. If acomplainant is incapable of understanding any one of those conditions, then they are incapable of consenting.

Conversely, the capacity towithhold consent inherently requires a lesser degree of understanding because that capacity is established by a complainant’s capacity tounderstand any of the necessary factors. For example, if a complainant is incapable of understanding the sexual nature of proposedtouching but knows they do not want to be touched, then they are capable of withholding consent despite being incapable of consenting.

[ 63 ] Second, the continuous nature of consent provides a further reason why the respondents’ argument must fail at a practical level. Consent must be specifically directed to each sexual act: J.A. , at para. 34 ; Criminal Code , s. 273.1(2) (e). There is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent, or incapacity. This case provides an example. On the trial judge’s findings, the sexual activity began when the complainant was passed out — evidence of incapacity.

As it continued, the complainant struggled and told the respondents to stop — evidence that she expressly refused to engage in the sexual activity. When those struggles and demands were ignored by the respondents, the complainant, in her confused and intoxicated state, acquiesced, believing she had no choice in the matter — again, evidence of incapacity. [ 64 ] Accordingly, it was open to the trial judge to find both that the complainant was incapable of consenting and did not agree to the sexual activity in question.

In the context of this case, the trial judge did not err in addressing these issues together in his reasons. Both findings went to a lack of subjective consent, thus establishing the final element of the actus reus . They did not need to be reconciled with each other, nor approached in any particular order. [ 65 ] As a final note, I reject the respondents’ argument that the complainant’s claim of incapacity was belied by her thorough recollection of the sexual activity. Whether the complainant has a memory of events or not does not answer the incapacity question one way or another.

The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate. B. Were the Trial Judge’s Reasons Sufficient? [ 66 ] The Court of Appeal identified two concerns with the sufficiency of the trial judge’s reasons. First, the trial judge’s reasons “may be read as equating any degree of impairment by alcohol with incapacity”.

Second, it was unclear if the trial judge found that the complainant did not consent, regardless of capacity. [ 67 ] As I explain below, I disagree. In the context of this case, the trial judge’s reasons were sufficient. The trial judge’s reasons should not be held to an abstract standard that is foreign to the realities of the case before him. All parties agreed at trial that the complainant’s evidence, if accepted, established incapacity. The trial judge accepted that evidence, and incapacity was clearly established. Similarly, all parties recognized that factual consent was at issue.

The complainant testified that she did not consent, repeatedly told the respondents to stop, and was told to be quiet. The trial judge accepted that evidence, and the absence of agreement to sexual activity was clearly established.

(1) Appellate Review of Trial Reasons [ 68 ] The importance of trial reasons should not be understated. It is through reasoned decisions that judges are held accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done in a particular case: R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869, at paras. 15 , 42 and 55; R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 134.

However, this Court in Sheppard emphasized that, for the purposes of appellate review, “the duty to give reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability”: para. 42. On appeal, the issue is whether there is reversible error. What is required are reasons that are sufficient in the context of the case for which they were given. [ 69 ] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient: Sheppard , at paras. 28-33 and 53 ; R. v.

Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 19 ; Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129, at para. 101 ; R. v. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788, at para. 25 ; R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, at para. 15 ; R. v. Laboucan , 2010 SCC 12 , [2010] 1 S.C.R. 397, at para. 16 ; R . v. Vuradin , 2013 SCC 38 , [2013] 2 S.C.R. 639, at paras. 10 , 15 and 19; R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000, at para. 15 ; R. v. Chung , 2020 SCC 8 , [2020] 1 S.C.R. 405, at paras. 13 and 33 .

Appellate courts must not finely parse the trial judge’s reasons in a search for error: Chung , at paras. 13 and 33 . Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M. , “[t]he foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para. 17.

And as Charron J. stated in Dinardo , “the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”: para. 31. [ 70 ] This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal.

If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: R.E.M. , at paras. 38-40 ; Sheppard , at paras. 46 and 55 . [ 71 ] The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why: Sheppard , at para. 55 . Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record.

Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may explain the factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52. [ 72 ] Sheppard itself was such a case.

The trial judge’s reasons for conviction read, in their entirety: Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged. [paras. 2 and 10] [ 73 ] This Court found that these reasons were factually insufficient because the pathway the trial judge took to the result was unintelligible: Sheppard , at para. 60 . It was simply not possible for the parties, counsel, or the courts to determine why the trial judge found as he did: paras. 2 and 61-62.

[74] Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard,at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether anerror has occurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. Atrial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them.

This stemsfrom the presumption of correct application — the presumption that “the trial judge understands the basic principles of criminal law atissue in the trial”: R.E.M., at para. 45. As stated in R. v. Burns, (SCC), [1994] 1 S.C.R. 656, at p. 664, “[t]rial judgesare presumed to know the law with which they work day in and day out”: see also Sheppard, at para. 54. A functional and contextualreading must keep this presumption in mind. Trial judges are busy.

They are not required to demonstrate their knowledge of basiccriminal law principles. [75] Conversely, legal sufficiency may require more where the trial judge is called upon to settle a controversial point oflaw. In those cases, cursory reasons may obscure potential legal errors and not permit an appellate court to follow the trial judge’s chainof reasoning: Sheppard, at para. 40, citing R. v. McMaster, (SCC), [1996] 1 S.C.R. 740, at paras. 25-27.

While trialjudges do not need to provide detailed maps for well-trod paths, more is required when they are called upon to chart new territory.However, if the legal basis of the decision can nonetheless be discerned from the record, in the context of the live issues at trial, then thereasons will be legally sufficient. [76] Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually,we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexualassault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsingimperfect or

summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged. [77] In three recent appeals as of right, this Court reinstated sexual assault convictions that were set aside on appeal,endorsing the reasons of a dissenting justice. [78] In R. v. Langan, 2020 SCC 33, [2020] 3 S.C.R. 499, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516, this Court adoptedthe dissenting reasons of Bauman C.J.B.C. that held that the trial judge’s ambiguous use of certain text messages did not demonstrateerror on a functional and contextual reading.

Bauman C.J.B.C. concluded that since there was a permissible basis on which to admit thetext messages, “we should not speculate that the properly admitted evidence was improperly used, without clear indications to thecontrary”: Langan (C.A.), at para. 103; see also para. 140. [79] To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review:Sheppard, at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision.

Where all that can be saidis a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellatereview. Where ambiguities in a trial judge’s reasons are open to multiple

interpretations, those that are consistent with the presumptionof correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citingR. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25.

It is only where ambiguities, in the contextof the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46.An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole anddetermining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons areambiguous — the appeal court must determine the extent and significance of the ambiguity. [80] In R. v.

Kishayinew, 2020 SCC 34, [2020] 3 S.C.R. 502, rev’g 2019 SKCA 127, 382 C.C.C. (3d) 560, and R. v.Slatter, 2020 SCC 36, [2020] 3 S.C.R. 592, rev’g 2019 ONCA 807, 148 O.R. (3d) 81, this Court adopted the reasons of a dissentingjudge holding that the trial judge did not err in conflating credibility and reliability. In both cases, the trial judges accepted thecomplainants’ evidence and found them to be credible, even if their reliability findings were not explicit on the face of the reasons. [81] As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference.

While the law requiressome articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and hasthe benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective,independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, noralways available.

Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additionalevidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and theCrown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, orwhy the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon,at para. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. [82] Credibility findings must also be assessed in light of the presumption of the correct application of the law,particularly regarding the relationship between reliability and credibility.

The jurisprudence often stresses the distinction betweenreliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring tocredibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

However, under afunctional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words“credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of theevidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept orbelieve inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, atpara. 16.

Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarily includesboth truthfulness and accuracy: McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30-1 and 30-2. Forexample, Black’s Law Dictionary (11th ed. 2019), at p. 463, defines credibility as “[t]he quality that makes something (as a witness orsome evidence) worthy of belief” and model jury instructions include both truthfulness and accuracy within “credibility” assessments:G. A. Ferguson and M. R.

Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)). Provided trial judges turn their

mind to these considerations, there is no requirement that they utter the word “reliable”.

(2) Application [83] In my view, the Court of Appeal in the present case did not conduct a functional and contextual reading of the trialjudge’s reasons, but rather assessed those reasons removed from the context of the live issues at trial. [84] The Court of Appeal found that the trial judge’s reasons “may be read as equating any degree of impairment byalcohol with incapacity”. The respondents also urge this reading. Obviously, equating any degree of intoxication with incapacity wouldbe wrong in law.

In my view, however, no such reading is appropriate here, on a functional, contextual approach. [85] The trial judge made two references to intoxication as rendering the complainant incapable. When setting out histask, at para. 51, he framed one of the questions as whether the complainant “was unable to provide her consent to this sexual activitybecause she was impaired by alcohol consumption”. When concluding his judgment, at para. 72, he wrote that “no consent is obtainedwhere the complainant is incapable of consenting to the activity.

This applies in instances where a complainant is intoxicated.” [86] The trial judge’s references to intoxication must be read in light of the live issues at trial. He recognized thatintoxication could lead to incapacity. But “any degree of impairment” was not at issue — what was at issue was the extreme degree ofintoxication to which the complainant testified. The complainant did not testify about some mild or abstract level of intoxication.

Herevidence was that she was so intoxicated that she vomited repeatedly, passed out, felt “out of control” during the sexual activity, felt thatshe had no choice in the matter, and could not do anything to stop it. All parties recognized at trial that this evidence, if accepted,established incapacity to consent. It is that degree of extreme intoxication that the trial judge was referring to when discussing whetherthe complainant was so intoxicated as to be incapable of consenting.

In the context of this trial, the trial judge’s reasons should not beread as equating any degree of intoxication with incapacity. [87] Similarly, the trial judge’s blending of consent and capacity reveals neither an error in law nor insufficient reasons. Itwould have been preferable for the trial judge to clearly identify what aspect of consent he was referring to in concluding that there wasno consent. However, failing to do so did not amount to error. [88] Capacity was not the only issue at trial.

While a finding of incapacity would establish the actus reus, the trial judgealso considered whether, if the complainant was capable, she did agree to the sexual activity. [89] The trial judge’s reasons can be read as finding both that the complainant was incapable of consenting and that shedid not agree to the sexual activity.

As explained earlier, these findings are not legally contradictory and both were available to him.Indeed, having chosen to accept and believe her evidence, both findings are obvious. [90] The respondents, in their arguments before the Court of Appeal and before this Court, stressed that the trial Crowndid not “invite” the trial judge to convict on the basis that the complainant did not agree to the sexual activity. While the trial Crowncertainly focused on incapacity, it is not fair to say that he disavowed this theory.

The charge was not particularized and the Crownadduced evidence that the complainant both was incapable of consenting and did not consent. The trial Crown’s written and oralsubmissions both highlighted the complainant’s evidence that she did not consent, such as her evidence that she told the respondents tostop and tried to push R.B. away. Whether the complainant agreed to the sexual activity was a live issue. Indeed, the defence urged thetrial judge to find that the complainant provided such an agreement.

It was open to the trial judge to find that the complainant wasincapable and that she expressly refused to engage in the sexual activity — either way, he found that the respondents sexually assaultedthe complainant. [91] The respondents received a fair trial. They were presumed innocent and held the Crown to its burden to prove theirguilt beyond a reasonable doubt. They thoroughly cross-examined the complainant and mounted a multi-faceted defence against thecharge. But fairness does not require perfection: R. v.

Harrer, (SCC), [1995] 3 S.C.R. 562, at para. 45, per McLachlin J.The trial judge accepted the evidence of the complainant that sexual activity began when she was unconscious and continued despite herpleas for the respondents to stop. His reasons revealed no error on a proper appellate reading. The respondents’ convictions should nothave been overturned simply because the trial judge expressed himself poorly. C.

Did the Court of Appeal Breach the Rules of Natural Justice in Deciding the Appeal for Reasons Not Raised by the Parties? [92] After rejecting G.F.’s unreasonable verdict argument, the Court of Appeal did not proceed to examine the grounds ofappeal raised by R.B.’s arguments but rather found that the trial judge had committed the errors it identified. The Court of Appealrecognized that it was not addressing “the precise argument advanced” by G.F. and R.B. but proceeded because “issues related to consentand capacity were central to the arguments made on appeal” by all parties: para. 29.

The Crown argues that the Court of Appeal shouldnot have decided the appeal on the basis of its concerns in the trial judge’s reasons without providing the parties an express opportunityto respond. It argues that this was a breach of natural justice, in contravention of this Court’s decision in R. v. Mian, 2014 SCC 54,[2014] 2 S.C.R. 689. [93] While this point is moot as I have determined that the Court of Appeal erred in reaching its conclusion, I do not agreethat Mian was breached. Mian sought to strike a balance between the adversarial process and the appellate court’s duty to ensure thatjustice is done.

In pursuit of that duty, sometimes the appellate court will need to raise a new issue that suggests error in the decisionbelow that goes beyond the arguments set forth by the parties. If the appellate court raises a new issue, fairness to the adversarial processrequires the court to provide the parties with notice and an opportunity to respond to it: Mian, at para. 30.

However, where the appellatecourt raises an issue that is not “new” but rather is rooted in or forms a component of the issues raised by the parties, Mian givesappellate courts a discretion to determine whether notice and submissions are warranted: para. 33. [94] Here, this Court would have no basis upon which to interfere with the Court of Appeal’s exercise of discretion.While the respondents’ unreasonable verdict argument did not directly engage the framework for assessing consent and capacity or thesufficiency of the tri

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