Quote:
Originally Posted by Makarov
What on earth are you talking about? This is simply untrue (and would be completely absurd.) Frankly, I don't understand how anyone could even find such a proposition plausible.
Obviously, people consent to sexual activity while intoxicated. A person only loses the ability to consent to sexual activity when they are so intoxicated that they have essentially lost consciousness due to alcohol or drug use.
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I disagree...you do not have to essentially lose consciousness to lose capacity to consent due to intoxication. The problem perhaps is that 'intoxication' means different things to people when they use it in their day to day discussions. Here's a summary from the Alberta Court of Appeal in 2012:
http://www.canlii.org/en/ab/abca/doc...12abca147.html
"The Criminal Code explicitly provides that there can be no consent if the complainant is incapable of consenting to the activity (s. 273.1).
Capacity to consent to sexual activity requires something more than the capacity to execute baseline physical functions.
The question is the degree to which intoxication negates comprehension or volition. A drunk complainant may retain the capacity to consent: R. v. R.(J) (2006), 2006 CanLII 22658 (ON SC), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17‑19, 43. Mere drunkenness is not the equivalent of incapacity: R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.). Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control: R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.). A drunken consent is still a valid consent.
Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases (R. v. Faulkner (1997), 1997 CanLII 1193 (ON CA), 120 C.C.C. (3d) 377 (Ont. C.A.)), though it is not required as a matter of law: R. v. Merritt, supra; R. v. Hernandez, [1997] A.J. No. 955 (Alta. C.A.), R. v. Cedeno, 2005 ONCJ 91 (CanLII), 195 C.C.C. (3d) 468 at para. 18."
As I hinted at before...how anyone is supposed to make valid real-life decisions based on this state of the law is beyond me.