Can a Drunk Consent to Sexual Activity?
By Hans 'John' Kalina | Originally published March 4, 2017 | Reviewed and updated October 7, 2026
Alcohol does not automatically make a person incapable of consenting to sexual activity. But being conscious is not enough, and capacity is not the same as consent. The person must be capable of making the choice and must voluntarily agree to the particular activity at the time it occurs.
Capacity and consent are different questions
Under section 273.1 of the Criminal Code, consent is a person's voluntary agreement to the sexual activity in question. No consent is obtained from an unconscious person or a person who is otherwise incapable of consenting. Consent cannot be supplied by someone else and cannot be induced through abuse of a position of trust, power or authority.
In R. v. G.F., 2021 SCC 20, the Supreme Court explained that capacity requires an operating mind capable of understanding the physical act, its sexual nature, the specific identity of the partner and the choice whether to participate. A person can have that capacity and still not agree. A relationship, previous sexual activity, silence or the absence of resistance is not a substitute for consent.
Intoxication is assessed from the evidence
There is no blood-alcohol limit that decides capacity to consent in every case. The question is the person's ability to understand and choose at the time of the activity, not simply how many drinks they consumed. Consciousness alone does not establish capacity.
Memory loss also requires careful analysis. In R. v. Rioux, 2025 SCC 34, the majority emphasized consideration of all relevant direct and circumstantial evidence. A memory gap alone does not establish incapacity, but it can contribute to that assessment alongside evidence of the person's condition and the surrounding events. Inability to remember does not establish that consent was given.
Consent must continue
Agreement to one activity does not establish agreement to another. Consent must be present when the activity takes place and can be withdrawn. If a person becomes unconscious, incapable of consenting or expresses that they do not want to continue, sexual activity must stop. Earlier agreement does not authorize later activity without consent.
A belief in consent has legal limits
Section 273.2 restricts reliance on an honest but mistaken belief in consent. Among other limits, the belief cannot arise from the accused's self-induced intoxication, recklessness or wilful blindness. Reasonable steps to ascertain consent are required, and there must be evidence of agreement affirmatively expressed through words or actively expressed through conduct. A bare assumption is not enough.
The Crown must prove the elements of the offence beyond a reasonable doubt. That protection does not create a right to proceed when capacity or agreement is uncertain. Stop and do not treat uncertainty as permission.
Related guidance
For advice about your circumstances, contact our office. General information only, not legal advice.