Does J.I have the capacity to consent to sexual activity?

Having carefully considered all of the evidence, I am satisfied that J.I. did have the capacity to consent to the sexual activity she later complained of – kissing in the first instance and sexual intercourse in the second – just as she had the ability to live on her own, make decisions and manage everyday tasks (which I note go beyond what one would expect of a six to eight year old) and the ability to stand trial on her criminal charges. As observed by the court in R v. R (R.), not every person with a mental disability is incapable of consenting to sexual activity. Each case will depend on its own facts. Unlike here, in R v. R (R.) the complainant was “profoundly” mentally disabled. J.I. is described as “mild to moderately” mentally disabled. It is obvious her verbal and social skills go beyond what one would expect in certain circumstances, such that during the trial she appeared to conduct herself like someone well into their teens.