Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Rioux

Case summary

The Supreme Court of Canada says courts must consider all available evidence, not just testimony, when deciding if someone had the capacity to consent to sexual activity.

This case was about an alleged sexual assault and whether a person was able to consent to the sexual activity. Canadian law not only says that a person must consent voluntarily to any sexual activity, but also that they must have the mental capacity to do so; otherwise, the sexual activity might constitute sexual assault. To have capacity to consent, a person must be capable of understanding: the physical act and its sexual nature, the sexual partner’s identity, and the fact that the person can refuse to participate. When a person cannot remember what happened during a sexual act, for example because they were intoxicated, the judge must look at all the surrounding evidence, including direct and circumstantial evidence, not just what the person can recall in their testimony. Direct evidence is based on what that person actually remembers or observed, while circumstantial evidence comes from surrounding clues that help the court understand what likely happened.

Mr. Rioux was charged with sexually assaulting a woman with whom he had a previous relationship. At a picnic in a park, the woman said she drank alcohol and then lost control over her body. She remembered only parts of the evening, and could not remember most of the sexual activity at the park or later that night at Mr. Rioux’s home. She said she had no clear memory of what happened and believed she may have been drugged. Mr. Rioux said he believed the woman was fully consenting throughout.

The trial judge found that the Crown had not proven its case beyond a reasonable doubt for the events at the park, because Mr. Rioux may have honestly, even if mistakenly, believed the woman was capable of consenting and did consent to the sexual activity. For the later events at Mr. Rioux’s home, the judge found that the woman did not have capacity to consent to the sexual activity there, but still said Mr. Rioux may have believed otherwise. Therefore, the judge found Mr. Rioux not guilty.

The Court of Appeal disagreed. It said the trial judge made legal errors in how he assessed the evidence. The trial judge had treated Mr. Rioux’s version of events as if it could explain the woman’s state of mind and had failed to consider important circumstantial evidence about her physical and mental state. For example, confusion, memory loss, or signs of impairment can help a court decide whether someone had the capacity to consent. The Court of Appeal set aside the acquittal and ordered a new trial on the sexual activity that occurred at the park, and not at the home because that was not appealed. Mr. Rioux then appealed to the Supreme Court.

The Supreme Court dismissed the appeal.

A person who experiences memory loss can still provide relevant evidence about their lack of consent, or their incapacity to consent.

Writing for the majority of the Supreme Court, Justice Martin said the trial judge made two main errors on questions of law. First, he said that direct evidence about a person’s state of mind is a requirement for determining their incapacity and absence of consent, and then he mistook the woman’s lack of direct evidence in this case as a lack of any available evidence relating to her state of mind. Second, the trial judge failed to understand that the woman’s circumstantial evidence was legally relevant, independent of any direct evidence.

Justice Martin explained that judges must look at the full picture when deciding whether someone had the capacity to consent. This includes the person’s evidence about their state of mind and physical state before, during and after the sexual activity. In this case, the trial judge focused too much on the woman’s lack of memory and ignored other signs that she may not have been capable of consenting.