Consent is an important concept in cases of assault, especially cases of sexual assault – an intentional application of force of a sexual nature without consent. The application of force and the sexual nature are typically not an issue as this could be almost any form of physical sexual contact. Whether the sexual acts were consensual is often the contentious issue in court. Many cases hinge upon whether valid consent existed at the time of the sexual activity.

The Criminal Code defines consent for the purposes of sexual assault as the voluntary agreement to engage in sexual activity. The individual must voluntarily consent to the physical act, the sexual nature of the act, and the specific partner. When this definition was introduced, it became commonly known as the “no means no” law. However, this label was problematic because it created a logical fallacy where the absence of a negative suggested a positive. The courts have largely avoided this fallacy when interpreting the law.

Keys to Consent

There are several keys points to remember regarding consent. Some of these are listed in the Criminal Code and others have been developed over the years. This list is not exhaustive.

    • Consent, or lack of consent, can be expressed by either words or conduct. Body language can be used to express intentions regarding sexual activity. Passiveness or silence is not consent. There must be some form of positive expression.
    • Consent does not exist if an individual expresses a lack of agreement to engage in the activity in any manner.
    • Consenting to one form of sexual activity is not consenting to all forms of sexual activity.
    • Consent cannot be given if the individual is incapable of consenting. If someone is unconscious, they cannot consent to sexual activity. Excessive intoxication may also prevent someone from consenting to sexual activity.
    • Consent must be given at the time of sexual activity. Consent cannot be given in advance. If someone consents to sexual activity but then becomes incapable of consenting, the consent is no longer valid.
    • Consent cannot be given by a third party. You can only consent for yourself.
    • Consent cannot be obtained by abusing a position of trust, power or authority. The mere presence of a relationship of trust, power or authority does not automatically vitiate consent. There must be an abuse of that trust, power or authority.
    • Consent cannot be obtained through the use of threats or coercion. This can include manipulation, extortion, fraud, and threats, or acts, of physical violence.
    • Consent can be negated after the fact if the sexual activity results in serious bodily harm.

Age of Consent

The age of an individual can also be a factor. The age of consent is generally 16, but someone must be at least 18 years old to participate in pornography or prostitution. An individual at least 14 years old, but less than 16, can consent to sexual activity if the age gap is less than five years and the relationship is not one of trust, authority, dependence, or exploitation. An individual at least 12 years old, but less than 14, can consent to sexual activity if the age gap is less than two years and the relationship is not one of trust, authority, dependence, or exploitation. With minors, the mere existence of a relationship of trust, power or authority will vitiate consent. Abuse of that position is not required.

Prior Sexual History

Parliament and the courts have also worked to create laws that prevent prior sexual activity from suggesting consent was valid. These are known as the “rape shield” laws. These laws prevent the sexual history of a complainant being used to suggest that consent existed because the complainant consented on other occasions or has a history of consenting to sexual activity in general. These laws have been challenged as unconstitutional because they could hinder an accused’s defence against a charge of sexual assault. However, these laws have been repeatedly upheld, including a recent decision by the Supreme Court of Canada. Consent to previous sexual activity cannot be used to infer consent.

Honest, yet Mistaken, Belief in Consent

In some cases, there can be an honest, yet mistaken, belief that the sexual activity was consensual. An honest mistake regarding consent would negate the fault element required for a criminal conviction. In order to demonstrate an honest mistake, an accused must show that reasonable steps were taken to ascertain whether the complainant was consenting at the time. It would not be an honest mistake if the accused was either reckless or wilfully blind regarding consent. It is also not an honest mistake if self-induced intoxication led the accused to believe consent existed.

For more information or to speak to a criminal defence lawyer, contact DDSG Criminal Law today.