What is sexual consent? 


In our previous blogs, we addressed various types of assault and the defences available. One such defence is the defence of consent. However, this defence is complex and has many aspects that must be proven. Our criminal law department often receives cases where consent was initially thought to be given but later was found invalid. Through this blog we aim to highlight the aspects of consent specifically in sexual assault cases.

How is consent defined in sexual assault cases?

In criminal law, consent is defined as the voluntary agreement of the complainant to engage in the specific sexual activity in question, as outlined in section 273.1 of the Criminal Code of Canada. This agreement must be present at the time the sexual activity occurs. The determination of consent is a critical aspect in cases of sexual assault, where the court examines whether the complainant genuinely agreed to the sexual act. 

According to the provisions outlined in section 273.1, consent must be voluntary and not obtained through the actions or words of anyone other than the complainant. Moreover, consent is deemed absent if the complainant is unconscious, incapable of consenting due to any reason other than unconsciousness, if the accused abuses a position of trust or authority to induce consent, or if the complainant expresses a lack of agreement verbally or through conduct, either initially or during the course of the sexual activity. 

This legal framework highlights the importance of ensuring that consent is actively given and understood by all parties involved in sexual encounters, thereby safeguarding against non-consensual acts.

What role does the state of mind play in consent?

The state of mind is crucial for understanding both the actus reus (physical component) and mens rea (mental component) of sexual assault. For the actus reus, the focus is on whether the complainant subjectively consented. For the mens rea, the court considers whether the accused had a reasonable belief that the complainant had communicated consent. This dual approach ensures that both parties clearly understand and agree to the sexual activity.

For example, imagine J and E are at a party. They flirt and dance together, and later go to a quieter room. J tries to get more intimate, but E feels uncomfortable and doesn’t want to go further. She hesitates but doesn’t say anything because she’s nervous. J thinks her silence means she’s okay with it and continues.

  • E’s subjective consent (actus reus): Did E really agree to the intimate contact in her mind? If she didn’t, then there was no real consent.
  • J’s belief in consent (mens rea): Did J have a reasonable belief that E agreed to the contact? If J didn’t make sure that E was clearly agreeing, then his belief was not reasonable.

In order to find the accused guilty of sexual assault, the Crown must prove beyond a reasonable doubt that J performed the sexual act without E’s subjective consent. If the court decides that E did not subjectively consent and J didn’t take proper steps to ensure she was consenting, J’s actions could be considered non-consensual.

Why is implied consent not a defence in sexual assault cases?

Implied consent, which is consent assumed based on a person’s actions or lack of resistance, is not a valid defence in sexual assault cases. The law mandates that consent must be explicit and clear for each specific act of sexual activity. This protects individuals from assumptions and ensures consent is always clearly given and understood.

Imagine T and S have been dating for a while and have previously engaged in consensual sexual activity. One evening, T starts initiating sexual contact, assuming S is okay with it because she didn’t resist in the past. However, this time, S is not comfortable but hesitates to immediately express her discomfort.

In this scenario, T’s assumption that S’s lack of resistance equates to consent is not valid under the law. Consent must be explicitly and clearly given for each specific act of sexual activity, regardless of any previous history between the individuals. Just because S did not resist or say no in the past does not mean she automatically consents to sexual activity on this occasion.

The principle emphasized by the law is that each instance of sexual activity requires active, ongoing consent. If S does not clearly communicate her agreement to the sexual activity initiated by T, then legally, consent has not been established. 

How does the timing of consent impact its validity?

Consent must be present at the time of the sexual activity and can be withdrawn at any moment. If someone changes their mind during the activity and withdraws consent, continuing the activity becomes non-consensual. This principle ensures consent is an ongoing process and must be maintained throughout the entire encounter.

Imagine K and W are engaging in sexual activity. Initially, K consents, but partway through, she decides she is no longer comfortable and tells W to stop. In this situation, if W continues despite K withdrawing her consent, his actions would be considered non-consensual under the law.

Consent in sexual activity must be continuous, meaning that it can be given or withdrawn at any point during the encounter. Even if K initially agreed, she has the right to change her mind and revoke her consent at any time. If W wants to avoid criminal liability for committing sexual assault against K, he is legally required to stop any sexual activity immediately upon K’s withdrawal of consent.

What constitutes proof of lack of consent?

To prove lack of consent, the Crown must show that the accused knew the complainant was not consenting, or was reckless or willfully blind to the absence of consent. This includes cases where the accused did not take reasonable steps to confirm consent or where their belief in consent was based on self-induced intoxication or willful ignorance. This standard ensures the accused is responsible for ensuring clear and affirmative consent.

When is consent vitiated?

Consent can be invalidated or “vitiated” in various circumstances recognized by law. These include:

  1. Fraud: Consent is not valid if it is obtained through deceit or misrepresentation about significant facts. For example, if someone lies about their use of contraceptives or their identity to induce consent, the consent obtained is not genuine.
  2. Fear or threats: Consent given under duress or fear of harm is not considered valid. If someone agrees to sexual activity because they are afraid of what might happen if they refuse, their consent is not genuine.
  3. Authority: Consent can be invalidated if it is obtained through the exploitation of a position of power or authority. For instance, if an employer uses their authority over an employee to coerce them into sexual activity, the consent obtained is not valid.
  4. Incapacity: Consent is not valid if the person giving it is not in a position to understand the nature of the activity or to make a reasoned decision. This can occur if the person is unconscious, intoxicated, or mentally incapacitated.
  5. Substitution of consent: This occurs when consent is obtained for one specific sexual act, but another different or more invasive act takes place without explicit consent for that particular act. For example, if someone consents to sexual activity with the understanding that protection will be used, but their partner engages in the activity without using protection, the initial consent does not cover the subsequent act done without protection.

What are some landmark cases in Canadian law regarding consent? 

Several landmark cases have shaped the understanding of consent in sexual assault offences under Canadian law. Some of these include:

  1. R. v. Ewanchuk (1999): This case established that the complainant’s subjective state of mind is critical in determining consent. The Supreme Court of Canada ruled that implied consent is not a defence and that consent must be actively communicated.
  2. R. v. J.A. (2011): This case clarified that a person cannot consent in advance to sexual activity that occurs while they are unconscious. The Supreme Court held that consent must be present throughout the entire sexual activity.
  3. R. v. Hutchinson (2014): In this case, the accused sabotaged a condom without the complainant’s knowledge. The Supreme Court ruled that consent obtained through fraud is not valid consent, as it vitiates the complainant’s agreement to the sexual activity.

If you or someone you know is facing legal issues related to sexual assault, our team at Shory Law LLP LLP’s Criminal Law Department is here to provide thorough guidance and support. We have a wealth of experience in handling sensitive cases like these, ensuring that your rights are diligently protected. Contact us today at 403-216-1199 to schedule a free consultation with our criminal lawyers. 

Leave a Reply

Your email address will not be published. Required fields are marked *