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Federal Consultations on Incapacity to Consent On May 22 and May 24 2019 there were two roundtable discussions taken place on the issue of incapacity to consent to sexual activities, specifically whether the Criminal Code should contain legislative guidance on when incapacity arises in cases short of unconsciousness, and if so how? Under Sections 271 to 273 in Criminal Code currently defines consent to sexual activity for the general sexual assault offenses as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This definition can be challenged in cases where no consent is obtained and when the complainant is incapable of consenting. On December 13, 2018 Bill C-51 came into force including amendments that clarified certain aspects of the consent laws including that an unconscious person is unable to provide consent and consent must be concurrent with the sexual activity in question. In 2011, the Supreme Court of Canada (SCC) found that advance consent to sexual activity that takes place while the complainant is unconscious is invalid because individuals must be conscious throughout the sexual activity to provide valid consent. Specifically, the SCC held that: * The Criminal Code requires ongoing, conscious consent to ensure that persons are not the victims of sexual exploitation and that they are capable of asking their partners to stop at any point (paragraph 3); * Paragraph 273.1(2)(b) indicates Parliament’s concern that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent (paragraph 36); * Parliament intended consent to mean the conscious consent of an operating mind (paragraph 36); * Valid consent requires a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act (paragraph 44); and, * The definition of consent requires the complainant to provide actual active consent throughout every phase of the sexual activity (paragraph 66). The SCC has not yet decided on the applicable legal test(s) to establish incapacity to consent for sexual assault purposes. Although appellate courts agree that determining incapacity is a subjective inquiry assessed from complainant’s point of view. The roundtables solicited feedback on whether or not the Criminal Code should articulate a legal test to determine a complainant’s capacity to consent. If so, what circumstances should be considered? Should this test be an exhaustive or non-exhaustive test? A non-exhaustive list of applicable tests would allow courts to develop additional tests as they deem appropriate. Should these tests also be the same for intoxicated complainants as for the cognitively impaired? Another area of the Criminal Code that was explored was whether the courts should directly take into account all of the circumstances of the case when assessing a complainant’s capacity to consent? Such as, whether the complainant is physically able to communicate consent. If you agree that the Criminal Code should include such a provision, should there be a list of factors that judges must consider? Such as, the nature of the relationship between the complainant and the accused. Should this list of factors be exhaustive or non-exhaustive? Should those factors be the same for the cases involving intoxicated or cognitively impaired complainants? Lastly, the roundtable prompted a discussion on whether the Criminal Code were to specifically direct the courts to consider all of the circumstances when assessing the capacity, is it also necessary to also articulate a legal test that would be determinative of capacity?