The Crown appealed a Court of Appeal order for a new trial on sexual assault charges arising from a camping trip on which the two accused engaged in sexual activity with a 16-year-old complainant who had consumed substantial alcohol.
The majority held that capacity to consent is a precondition to subjective consent, not a vitiating factor, so a trial judge need not address consent and capacity separately or in any particular order.
The majority further held that the trial judge's reasons were sufficient in the context of the case, as all parties agreed that the complainant's evidence — if accepted — established both incapacity and non-consent.
The concurring judges agreed on the result but found the trial judge's reasons insufficient on the capacity question, applying the curative proviso on the basis of overwhelming evidence of non-consent.
The dissent would have dismissed the appeal, concluding that the trial judge's errors were not trivial and the evidence was not sufficiently overwhelming to apply the curative proviso.
