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R v Kishayinew, 2020 SCC 34

Posted on November 24, 2020

The Supreme Court of Canada recently heard and decided on a “consent” case in the context of sexual assault in R v Kishayinew. In this decision, the trial judge originally concluded that, based on the complainant’s memory blackouts, the only evidence available on subjective consent was circumstantial evidence. The circumstantial evidence available in this case was that the complainant was crying and disoriented. She also stated that she did not want to go with the accused. The Supreme Court of Canada decided that the trial judge concluded correctly that the evidence supported only one reasonable inference, and that was that the complainant did not consent to any touching by Mr. Kishayinew.

What Is "Subjective Consent"

Understanding and applying the law of circumstantial evidence is not an easy task for a lawyer, and it is often a ground of appeal. In Mr. Kishayinew’s case, both parties had been consuming alcohol. At one point, the complainant testified that she rebuffed Mr. K’s sexual advances, but eventually she blacked out. She testified that when she came to, she was lying on a bed. She eventually left that room and fled the residence. The trial judge decided that the complainant lacked the capacity to consent due to her state of intoxication. He found that she was so intoxicated that she did not have a conscious, operating mind which was capable of appreciating the nature and quality of the sexual activity. Mr. Kishayinew was convicted and sentenced to 4.5 years’ imprisonment. He was also ordered to register with the Sex Offender Information Registration Act.

On appeal, Mr. Kishayinew argued that the verdict was unreasonable because the trial judge erred in the analysis by finding that the complainant’s evidence was reliable but also finding that she did not have the capacity to consent due to her level of intoxication. They argued that this guilty verdict was unreasonable. The Court of Appeal agreed with this argument; however, one justice disagreed. The Supreme Court of Canada agreed with the dissenting justice and concluded that the verdict was not unreasonable based on the evidence before the trial judge in relation to concluding that the complainant did not consent. Mr. Kishayinew’s conviction was restored.

Consent and the capacity to consent are critical issues in sexual assault allegations. This decision demonstrates the need to scrutinize reliability and credibility. It is important that your lawyer understands these issues and is capable of pressing each at trial, if needed.

At Ross Lutz Barristers, we have a team of highly experienced defence lawyers ready to work with you. We are serious lawyers who defend serious charges every single day. Contact us today to discuss legal advice and the course of action for your case.