Blurred Lines: Drunken Consent in Canadian Criminal Law

I have a very vexing and perplexing conundrum of a legal issue to talk to you about today. And that is drunken consent, men and women consenting while they’re drunk. And the first thing I want to say to you is this. First of all, a drunken a consent can be a valid consent in fact, case law supports that people can have sex and consent, even when they’re very drunk. Now you have to understand a consent is a voluntary agreement to entering a sexual act, voluntary consent to agreening to the act so everything from you, from your mind, from your body. Everything is saying yes. That yes can be articulated verbally. It can also be articulated through your bodily actions.

No, by the way, I recommend people you should always obtain both particularly early in the relationship because it’s, it’s fraught with danger, only obtaining one, they both should be saying yes, although both either or, or both are valid. Now what happens here? So two people, ill give you an example, two people they haven’t met each other. They run into each other in a bar, and they go home and they’re both very drunk. They’re still in capacity. They’re still speaking, talking, able to have cognition but they might even be staggering. They might even be slurring. Where’s the continuum where their incapacity that’s what we talked about, we talked about a sober person on this end, I’ll use a spectrum and a continuum. The very drunk person in fact falling down belligerent on this end. Or a comatose.

Where along that line is capacity, where you’re incapacity. That’s the important point. Because at that line, you’re not able to consent. Give an example of a woman who’s had too much to drink. It’s heavily slurring, not making sense, staggering. almost falling down, clearly not capable of consent. Clearly that would be a sexual assault. What if we move along a little bit further, though, where someone is slightly staggering, but they’re still in comprehension, still speaking well, their bodily actions are showing consent.

Well, there’s an argument that that’s still consensual. In fact, many Canadian commentators have commented that a person who’s very drunk can still consent.

Where does the line lie? Well, the case law talks about that, but the case law is loaded. I mean, if you give me a factual situation, I can tell you if the person has a capacity it’s hard to articulate it every case is different. But this is an important point to know. But the lesson from this I think, one lesson you should take out of this for people who are in relationships.

I don’t think it’s advisable for people who don’t know each other very well to be drunk and have sex because it’s fraught with difficulty. You’re both drinking, the man’s perception of being drunk may not be good, he may be perceiving things a certain way that the woman who is very drunk may not remember the next day you might have an alcoholic blackout and in fact, you consented but you can’t remember. Watch my video about that. That’s a whole different kettle of fish and ball of wax, which is crazy in our legal system, and it’s just fraught with difficulty, the drunkenness and sex particularly for people who don’t know each other or very, very well is a recipe for disaster. It causes all sorts of problems and results in criminal charges, some that are very valid, probably the majority, I’m sure some that are invalid. And again, that’s I’m doing a whole series of video about consent, alcohol, and you can watch this series of videos going forward. In my next round of videos, within a couple of months, I’m gonna be talking about all sorts of issues but I did a few today. These are very serious issues. They need to be taken care of. Consider carefully conveyancing aside but I I’ve got to reiterate my advice. Do not have drunken sex early in a relationship. I never get drunk although I may have a drink myself tonight. It’s Friday by the way, I wasn’t in trial today so it’s been a long day of videos and it’s the end of the day.

But this is an interesting issue. It’s a vexing issue and where does that where does that capacity lie but I think we can all articulate we all know whether a person has capacity or not when you’re dealing with a drunk, you know whether that person is showing comprehension or not. But at that line if they’re just short of that line should you really be having sex with that person? Probably not because that’s a recipe for disaster believe me, and I’ve done so many sexual assault trials involving where that line crossed.

As judges struggle with this. We all struggle with this in the courtroom and it’s just, it creates so many messes in people’s lives in Canada, so please follow my advice in this regard. Anyway, it’s been a great day of videos I always enjoy doing these videos and I hope you’re getting educated watching the video series and I’m glad to help out the public with all these videos. Thanks for joining me today.

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