Consent in Sexual Offences

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General Principles

See also: Consent and Sexual Assault (Offence)

The element of consent "is generally the most important issue with regard to sexual assault".[1]

Consent applies to both the actus reus and mens rea of the offence. The actus reus concerns whether "the complainant was subjectively consenting in her mind" and the mens rea concerns whether "accused believed that the complainant communicated consent".[2]

The absence of consent must be determined on a subjective basis of the complainant "by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred."[3]

There is no obligation that the complainant "express her lack of consent or her revocation of consent" before the actus reus can be made out.[4]

If the trial judge believes the complainant subjectively did not consent, the Crown has proved the absence of consent. The accused’s view of the complainant’s conduct is not relevant to whether the actus reus has been established. [5]

There must be actual consent. It is not a defence to sexual assault to suggest implied consent.[6]

Consent must coincide with the sexual activity and can be withdrawn at any time.[7]

The proof of lack of consent requires that the accused "knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent.".[8]

In certain cases, the accused may raise a defence of honest but mistaken belief in consent.[9] In relation to offences of sexual assault, sexual assault causing bodily harm (or with a weapon), or aggravated assault, consensual sexual activity must be consensual within the meaning of s. 273.1(1) of the Code. Section 273.1 states:

Meaning of “consent”
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1.


CCC

Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

1992, c. 38, s. 1.


CCC

Analysis of consent for sexual offences requires a two step process:[10]

  1. determine whether there is evidence establishing there was no "voluntary agreement of the complainant to engage in the sexual activity in question" (s. 273.1(1))
  2. if there was consent (or a reasonable doubt of a lack of consent), then "consider whether there are any circumstances that may vitiate her apparent consent".

The first step "requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner." Other conditions or qualities of the act, such as whether effective birth control was being used or the existence of a sexually transmitted disease are not relevant at this stage. [11] The "sexual activity in question" refers to the specific physical act, whether it be kissing, petting, oral sex, intercourse, or the use of sex toys. This will be as precise as the form of penetration or the part of the body to be touched.[12] The sexual nature of the offence should distinguish from other forms of non-sexual activity such as medical examinations.[13] The identity of the sexual partner refers to "a specific individual known personally to her". Where the complainant is mistaken then there can be no consent on this first stage.[14]

In this first step the Crown must prove the absence of a subjective voluntary agreement to the sexual act in question.[15] The absence of consent, as an element of the offence, is "judged subjectively from the complainant's point of view".[16]

Section 273.1(2)(c) does not require coercion. It is applicable where the “use of personal feelings and confidence engendered by that relations to secure an apparent consent to sexual activity”.[17]

  1. R v James, 2011 BCSC 612 (CanLII) at para 18
  2. R v J.A., 2011 SCC 28 (CanLII) at para 37
    R v Ewanchuk, 1999 CanLII 711 (SCC) at paras 48 to 49
  3. Ewanchuk, ibid. at para 26
  4. J.A., supra at para 37
  5. Ewanchuk, supra, at para 29
  6. Ewanchuk, supra, at para 31
  7. R v Hutchinson, 2014 SCC 19 (CanLII) at para 17
  8. J.A., supra, at para 24
  9. J.A., supra at para 24
  10. R v Hutchinson 2014 SCC 19 (CanLII)
  11. Hutchison, ibid. at paras 5, 55
  12. Hutchinson, ibid. at para 54
  13. Hutchinson, ibid. at para 57, 58
  14. Hutchinson, ibid. at para 58, 63
  15. Hutchinson, ibid. at para 55
  16. Hutchison, ibid. at para 17
  17. R v Lutoslawski, 2010 ONCA 207 (CanLII)

Sexual Activity in Question

Consent in sexual assault set out in s. 273.1 requires "voluntary agreement" between the persons to "the sexual activity in question". This is meaning is restricted to the complainant's subjective agreement to the "touching and its sexual nature". [1] The "sexual activity in question" refers to the "physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys)."[2]

  1. R v Hutchison, 2014 SCC 19 (CanLII)
  2. Hutchison, ibid. at para 54

Statutory Exceptions To Consent

See also: Consent

Section 265(3) deems an absence of consent despite evidence of consent in certain circumstances consisting of:[1]

  • application of force to complainant or another (s. 265(3)(a))
  • threats or fear of force to the complainant or another (s. 265(3)(b))
  • fraud (s. 265(3)(c))
  • exercise of authority (s. 265(3)(d))

The circumstances set own section 265 (3) identify "situations in which it complainant's apparent consent is not effective because it is not a true reflection of the exercise of the complainant's free will".[2]

Section 273.1(2) is a non-exhaustive list of circumstances in which no consent is obtained.[3] While s. 273.1(3) provides a manner in which courts may consider other circumstances.[4]

The term "exercise of authority" under section 265(3)(d) is intended to capture relationships in which one party has "the power to influence the conduct and actions" of others. [5] however, influence "is a question of degree" whereby at some point "influence becomes coercion and a parent consent is nothing more than submission". it is when it becomes coercion that section 265(3)(d) is engaged. [6]

and accused is in a position of authority when he "can course the complainant into consent by virtue of their relationship". [7] Such positions can include doctor-patient relationships or student-teacher relationships.[8]

The burdens upon the ground prove beyond reasonable doubt that the parent consent was obtained by the exercise of "coercive of authority". [9]

"Consent" in s. 273.1 refers to "consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter."[10] Consent requires "a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act." [11]

  1. R v Hutchison, [2014] 1 SCR 346, 2014 SCC 19 (CanLII), at para 4
  2. R v Geddes, 2015 ONCA 292 (CanLII) at para 32
  3. R v J.A., 2011 SCC 28 (CanLII), [2011] 2 SCR 440, at para 29
  4. JA, ibid. at para 29
  5. R v Matheson, 1999 CanLII 3719 (ON CA)
  6. Geddes, supra at para 34
  7. Geddes, supra at para 36
  8. Geddes, supra at para 37
  9. Geddes, supra at para 36
  10. JA, supra at para 31
  11. JA, supra at para 44, 66

Unconsciousness

Section 273.1(2)(b) deems there to be no consent where "the complainant is incapable of consenting to the activity".

An unconscious person cannot provide consent in advance. Such a person is "incapable of consciously evaluating whether she is consenting is therefore not consensual". Consent requires an ongoing conscious consent throughout the sexual activity.[1]

If a victim is unconscious then the crown may prove lack of consent by circumstantial evidence. [2] While not required, for such evidence to be probative, some expert evidence is often necessary. [3]

As for capacity to consent, courts can infer a lack of capacity where there is direct evidence that:[4]

  1. the complainant was extremely intoxicated;
  2. the complainant was asleep or unconscious when the sexual touching commenced; or
  3. the complainant was asleep or unconscious during all of the sexual touching (B.S.B., supra at para 45).
  1. R v J.A., [2011] 2 SCR 440, 2011 SCC 28 (CanLII), at para 66
  2. R v JR, 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.)
  3. JR, ibid.
    R v B.S.B., 2008 BCSC 917 (CanLII), affirmed 2009 BCCA 520 (CanLII)
  4. R v C.A., 2010 YKSC 32 (CanLII)

Intoxication

The capacity to consent requires more than simply the “baseline physical functions”.[1]

Drunkeness is not the same as incapacity.[2] Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not negate consent.[3] An intoxicated complainant may still have the ability to consent.[4]

Where alcohol may have vitiated consent, it may be best established by way of expert evidence. But it is not necessary as a matter of law.[5]

Consent may be vitiated by abusing a position of trust, power or authority. [6]

However, any threats or abuse that occurs after the event cannot go towards vitiation of consent.[7]

The judge may not make a finding that consent was "not possible" on the sole basis that the complainant was "drinking heavily".[8]

  1. R v Haraldson, 2012 ABCA 147 (CanLII) at para 7
  2. R v Jensen 1996 CanLII 1237 (ON CA), (1996), 106 CCC (3d) 430 (Ont. C.A.)
  3. R v Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.) (*no link)
  4. R v R.(J) 2006 CanLII 22658 (ON SC), (2006), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras 17‑19, 43
  5. R v Faulkner 1997 CanLII 1193 (ON CA), (1997), 120 CCC (3d) 377 (Ont. C.A.))
    R v Merritt
    R v Hernandez, 1997 ABCA 297 (CanLII), [1997] A.J. No. 955 (Alta. C.A.)
    R v Cedeno, 2005 ONCJ 91 (CanLII), 195 CCC (3d) 468 at para 18
  6. R v Asfour, 2006 CanLII 577 (ON CA)
  7. Asfour
  8. R v A.W., 2008 NLCA 52 (CanLII)

Fraud

In a sexual assault context, fraud will vitiate consent where an "objectively dishonest act" (i.e. falsehoods or failure to disclose) has "the effect of exposing the person consenting to a significant risk of serious bodily harm".[1] To be dishonest, the acts must be those that "a reasonable person would find them to be dishonest".[2]

Trivial harm or mere risk of harm is not sufficient to vitiate an otherwise consensual act.[3] Thus, "careful use of a condom might reduce risk" to a point that consent is not vitiated.[4]

The failure of the accused to disclose that they are HIV positive before sex can vitiate any consent for sex that the victim gave.[5]

Where "deception causes a misunderstanding as to the nature of the act itself there is no legally recognized consent because what happened is not that for which consent was given"[6]Consent that is not based on a knowledge of the significant relevant factors in not valid.[7]

  1. R v Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 SCR 371 per Cory J. at paras 14, 128
  2. Cuerrier, ibid. at 49
  3. Cuerrier, ibid. at para 128
  4. Cuerrier, ibid. at para 129
  5. Cuerrier, ibid.
    R v Mabior, 2012 SCC 47 (CanLII)
  6. Cuerrier, ibid., at para 99
  7. Cuerrier, supra at para 127

Honest but Mistaken Belief in Consent

The defence of honest but mistaken belief of consent creates a third alternative to the choice between whether the alleged victim consented to the sexual contact.

At common law, the defence is a form of "mistake of fact", which if true, would have rendered the conduct lawful.[1]

The defence is available where there is evidence of a "denial of consent, lack of consent or incapacity to consent" which is interpreted as consent, as well as "evidence of ambiguity or equivocality" showing the possibility of mistaken belief without being wilfully blind or reckless.[2]

The defence is a denial of the mens rea of an offence of sexual assault.[3]

Thus, the defence requires:[4]

  1. evidence that the accused believed the complainant was consenting;
  2. evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
  3. evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.

It is not sufficient to simply have a subjective belief of consent.[5]

It is not acceptable to rely on a "belief that silence, passivity or ambiguous conduct constitutes consent".[6]

An accused cannot simply assert a belief in consent to raise the defence. It must be supported by the "some degree of other evidence or circumstances".[7]

Reasonable Steps
The accused must have taken "reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question".[8]

This inquiry by the accused into consent is to occur before the sexual act commences.[9] Escalation in the sexual activity requires further inquiry.[10]

This defence is available in circumstances where the victim was unconscious, asleep or otherwise incapable of consenting but appeared awake and to consent from the perspective of the accused.[11]

Irreconcilable Versions of Events
Where there are diametrically opposite versions of events between the victim's evidence and the accused's evidence are not collectively reconcilable, then the case is determined by conventional credibility analysis and mistaken belief of consent is not to be put to the jury.[12]

Procedural Considerations
There must be an "air of reality" before the defence can be considered.[13]

In almost all cases, the accused will have to testify to establish a mistaken belief.[14]

  1. R v Pappajohn [1980] 2 SCR 120, 1980 CanLII 13 (SCC), at pp. 134, 139
    J.A. at para 48
  2. R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777 at paras 79, 88
  3. R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, per Lamer CJ, at paras 80
  4. Davis, ibid. at para 81, 86
    Esau, supra per McLachlin J, at para 63 - in dissent, but affirmed by majority in Davis at para 86, ("There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant's lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. ")
    R v Delacruz, 2016 ABQB 187 (CanLII), at para 87
  5. R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 46, 47
  6. Ewanchuk, ibid. at para 51
  7. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595 (CanLII) at para 139 ("The bare assertion by the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief. The assertion must be “supported to some degree by other evidence or circumstances”:... . The support may come from the accused or some other sources; on this point I agree with Cory J’s resolution of the confusion which existed in the earlier cases. But the support must exist. As Lord Morris of Borth-y-Gest put it, a “facile mouthing of some easy phrase of excuse will not suffice” (citation omitted).")
  8. J.A., supra at para 48
  9. R v Darrach, supra at para 90
  10. Ewanchuk, supra at para 99
  11. R v Crespo, 2016 ONCA 454 (CanLII) at para 11
    R v Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at paras 17-25
  12. Davis, supra at para 85
    R v Somers, 2009 ONCA 567 (CanLII)
  13. Davis at para 81
  14. R v Slater, 2005 SKCA 87 (CanLII)
    R v Ross, 2012 NSCA 56 (CanLII)

Capacity for Consent for Under 16 Years of Age

See Also