Un individu a la responsabilité, avant d’engager un acte sexuel, de prendre les mesures raisonnables pour s’assurer du consentement, à plus forte raison si l’un des participants connaît des limitations intellectuelles

R. v. R.R., 2001 CanLII 27934 (ON CA)

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[57]         The appellant argued that before guilt is found based on an incapacity to consent, there should be some evidence to show with certainty that a person who is severely or moderately mentally disabled does not understand the sex act.  This distorts how the issue of consent is to be approached.  Under any circumstances, there is a responsibility, prior to engaging in sexual activity, to take reasonable steps to ascertain consent: Criminal Code s. 273.2(b).  But in circumstances such as these, where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially.  This is not to suggest that persons who are developmentally disabled cannot consent; [1] rather, it requires that prior caution be exercised to avoid the exploitation of an exceptionally vulnerable individual. The issue in any event was not the capacity of persons with developmental disabilities to consent to sexual activity; rather, the issue was the capacity of this particular complainant to consent to sexual activity with the appellant and whether he had an honest but mistaken belief in that capacity.

[58]         The appellant had known the complainant for 10 years.  He was her neighbour, was fully aware that she had cognitive disabilities, acknowledged that she functioned at the same mental level as an 8 to 10 year old, and admitted that he gave no thought to her capacity to engage in sexual activity.  Notwithstanding his unfettered knowledge of her disabilities, he based his assumption about the complainant’s consent on a palpably inappropriate question about whether he was wearing underwear, and reinforced it by her touching his penis when he invited her to "check it out" and then by her silence. It is difficult to see how these facts, in the context of what the appellant knew about the complainant, could create an entitlement on his part to ignore his responsibility to consider her capacity. 

[59]         It is utterly unrealistic for the appellant to argue that he had an honest but mistaken belief in the complainant’s consent, when he acknowledged that he gave no thought whatever to her capacity to consent. The appellant's willingness to suspend all knowledge of her profoundly reduced mental abilities and assume her capacity to consent in these circumstances, defies reality. (see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; R. v. Livermore, 1995 CanLII 43 (SCC), [1995] 4 S.C.R. 123; and R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782.)