Consent in Sexual Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 96565)

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 is a matter of the "actual state of mind of the complainant."[2] Belief in consent is a matter of the state of mind of the accused.[3]

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."[4]

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."[5]

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.[6]

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. [7]

Implied Consent

There must be actual consent. It is not a defence to sexual assault to suggest implied consent.[8]

Implied consent cannot rest on the assumption that there is consent if the woman fails to protest or resist.[9]

Timing of Consent

Consent must coincide with the sexual activity and can be withdrawn at any time.[10]

Proof of Lack of Consent

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.."[11]

In certain cases, the accused may raise a defence of honest but mistaken belief in consent.[12]

Statutory Requirements

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) [no consent obtained – sexual assault] and subsection 265(3) [where consent is deemed unavailable in common assault], “consent” means, for the purposes of sections 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] and 273 [aggravated sexual assault], the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent

(1.1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(1.2) The question of whether no consent is obtained under subsection 265(3) [where consent is deemed unavailable in common assault] or subsection (2) [no consent obtained – sexual assault] or (3) is a question of law.

Where no consent obtained

(2) For the purpose of subsection (1) [no consent obtained – sexual assault], no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.‍1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.‍1);
(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) [no consent obtained – sexual assault] shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1; 2018, c. 29, s. 19.

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 273.1(1), (1.1), (1.2), (2), and (3)

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] 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
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) [where consent is deemed unavailable in common assault] or 273.1(2) [no consent obtained – sexual assault] or (3) in which no consent is obtained;
(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; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

1992, c. 38, s. 1; 2018, c. 29, s. 20.

– CCC (CanLII), (DOJ)

Note up: 273.1

Analysis of consent for sexual offences requires a two-step process:[13]

  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".

Once there is a "no" there is sufficient notice to the accused that there is a problem with consent. This obliges the accused to obtain a clear and unequivocal yes before there is any further sexual activity. [14] The rule equally applies to an obvious statement such as "stop."[15] A more modern approach requires that "[n]othing less than positive affirmation" will amount to consent.[16]

First Step

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. [17] 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.[18] The sexual nature of the offence should distinguish from other forms of non-sexual activity such as medical examinations.[19] 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.[20]

In this first step the Crown must prove the absence of a subjective voluntary agreement to the sexual act in question.[21] The absence of consent, as an element of the offence, is "judged subjectively from the complainant's point of view."[22]

Position of Trust

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”.[23]

  1. ↑ R v James, 2011 BCSC 612 (CanLII), 86 CR (6th) 107, per Romilly J, at para 18
  2. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [199] 1 SCR 330, per Major J, at para 27
    R v Nguyen, 2017 SKCA 30 (CanLII), 348 CCC (3d) 238, per Caldwell JA, at para 8
  3. ↑ Nguyen, ibid., at para 8
    R v Dippel, 2011 ABCA 129 (CanLII), 281 CCC (3d) 33, per curiam, at para 13
  4. ↑ R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 37
    Ewanchuk, supra, at paras 48 to 49
  5. ↑ Ewanchuk, ibid., at para 26
  6. ↑ JA, supra, at para 37
  7. ↑ Ewanchuk, supra, at para 29
  8. ↑ Ewanchuk, supra, at para 31
  9. ↑ R v RGB, 2012 MBCA 5 (CanLII), 287 CCC (3d) 463, per Freedman and Chartier JJA, at para 54
  10. ↑ R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J, at para 17
  11. ↑ JA, supra, at para 24
  12. ↑ JA, supra, at para 24
  13. ↑ Hutchinson, supra
  14. ↑ Ewanchuk, supra at para 51
  15. ↑ R v AE, 2021 ABCA 172 (CanLII), per Martin JA
  16. ↑ R v Goldfinch, 2015 SCC 38 (CanLII) at para 44 ("Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.")
  17. ↑ Hutchison, ibid., at paras 5, 55
  18. ↑ Hutchinson, ibid., at para 54
  19. ↑ Hutchinson, ibid., at paras 57, 58
  20. ↑ Hutchinson, ibid., at paras 58, 63
  21. ↑ Hutchinson, ibid., at para 55
  22. ↑ Hutchison, ibid., at para 17
  23. ↑ R v Lutoslawski, 2010 ONCA 207 (CanLII), 258 CCC (3d) 1, per Doherty JA

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), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J
  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 s. 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]

  1. ↑ R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J, at para 4
  2. ↑ R v Geddes, 2015 ONCA 292 (CanLII), 322 CCC (3d) 414, per Doherty JA, at para 32

Statutory Exemption Under s. 273.1(2)

Section 273.1(2) is a non-exhaustive list of circumstances in which no consent is obtained.[1] While s. 273.1(3) provides a manner in which courts may consider other circumstances.[2]

Purposes

The purpose of the provision under s. 273.1(2)(c) is “[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity”.[3]

Meaning of "Consent"

"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."[4] Consent requires "a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act." [5]

All non-verbal behaviours that are being relied upon as "expressions of consent" must be "unequivocal."[6]

Consent Expected in Sexual Encounters

A sexual encounter between two strangers requires "as a matter of logic and common sense ... clear and unambiguous communication of consent."[7] Depending on the circumstances, context of the prior relationship "may, in certain circumstances, impliedly provide scope for the perception of the existence of consent."[8]

  1. ↑ R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 29
  2. ↑ JA, ibid., at para 29
  3. ↑ R v Snelgrove, 2019 SCC 16 (CanLII), [2019] 2 SCR 98, per Moldaver J
    R v Hogg, 2000 CanLII 16865 (ON CA), 148 CCC (3d) 86, per Finlayson JA, at para 17
  4. ↑ JA, supra, at para 31
  5. ↑ JA, supra, at paras 44, 66
  6. ↑ R v TS, [1999] OJ No 268 (Ont. Ct. J. (Gen. Div.)(*no CanLII links) , per Hill J, at p. 158
  7. ↑ TS, ibid., at para 158
  8. ↑ TS, ibid., at para 158

Capacity to Consent

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

Consent in this context means the "conscious agreement of the complainant to engage in every sexual act in the particular encounter."[1]

Capacity is as necessary precondition to consent.[2]

A complainant who is (a) unable to say "no" or (b) believes they have no choice in the matter, is not capable of forming subjective consent.[3]

Burden of Proof

The Crown has to prove beyond a reasonable doubt either the absence of a capacity to consent or the absence of consent as a fact.[4]

Standard of Proof

The existence of "subjective consent requires that the complainant subjectively agree to:[5]

  1. the act;
  2. its "sexual nature";
  3. the "specific identity of their partner; and
  4. the existence of a choice to refuse to participate in the sexual act.

The proof beyond a reasonable doubt of absence of any one of these elements will render the complainant unable to consent to the sexual activity.[6]

Incapacity is established where the evidence is shown that the complainant is "incapable of understanding the sexual nature of the act" or was "not able to appreciate that they may choose to decline to decline to participate in the activity."[7]

Effect of Incapacity

If incapacity is established, the Crown does not need to prove the absence of any prior consent.[8]

Lack of Memory of the Event

The alleged victim's loss of memory of the event "is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period."[9] It can also permit, in combination with other evidence, the inference that alleged victim did not or was not capable of consenting.[10] While not strictly necessary, "expert evidence will almost always be essential" is such a case.[11]

A complainant with no memory can testify to their "pre-existing attitudes and assumptions" that they would not have consented to sexual activity at any time. That evidence can be used to make the inference that the complainant subjectively did not consent.[12]

  1. ↑ R v JA, 2011 SCC 28 (CanLII) (working hyperlinks pending), at para 31
  2. ↑ R v GF, 2021 SCC 20 (CanLII), per Karakatsanis J, at para 55
  3. ↑ GF, ibid., at para 57
  4. ↑ R v Haraldson, 2012 ABCA 147 (CanLII), 102 WCB (2d) 531, per curiam, at para 17
    R v Jensen, 1996 CanLII 1237 (ON CA), 106 CCC (3d) 430, per Rosenberg JA at 439
    R v Patriquen, 2005 NSCA 27 (CanLII) (working hyperlinks pending), at para 19
  5. ↑ GF, supra, at para 32
  6. ↑ GF, supra, at paras 57to 58
  7. ↑ Jensen, supra appeal to SCC quashed, 1997 CanLII 368 (SCC), [1997] 1 SCR 304, per Sopinka J
  8. ↑ R v Ashlee, 2006 ABCA 244 (CanLII), 212 CCC (3d) 477, per Paperny JA (2:1), at para 20
    Hutchison, supra
  9. ↑ R v JR, 2006 CanLII 22658 (ON SC), 40 CR (6th) 97, per T Ducharme J
    R v Cedeno, 2005 ONCJ 91 (CanLII), [2005] OJ No 1174 (C.J.), per Duncan J
  10. ↑ JR, ibid.
  11. ↑ JR, ibid.
  12. ↑ R v Garciacruz, 2015 ONCA 27 (CanLII), 320 CCC (3d) 414, per Rouleau JA, at para 69
    R v Kontzamanis, 2011 BCCA 184 (CanLII), per Kirkpatrick JA, at para 31

Broad Advanced Consent

It is impermissible for a judge to apply a "broad advanced consent" to find that the complainant agreed to figure sexual activity with an "undefined scope."[1]

For consent to be valid it must be:[2]

  • "linked to the sexual activity in question";
  1. "must exist at the time the activity occurs"; and
  • "it can be withdrawn at any time".
  1. ↑ R v Barton, 2019 SCC 33 (CanLII), [2019] 2 SCR 579, at para 99
    R v AE, 2022 SCC 4 (CanLII), per Moldaver J
  2. ↑ AE, ibid.

Unconsciousness

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 (BSB, supra, at para 45).
  1. ↑ R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 66
  2. ↑ R v JR, 2006 CanLII 22658 (ON SC), [2006] OJ No 2698 (S.C.), per T Ducharme J
  3. ↑ JR, ibid.
    R v BSB, 2008 BCSC 917 (CanLII), per Romilly J, affirmed 2009 BCCA 520 (CanLII), per Donald JA
  4. ↑ R v CA, 2010 YKSC 32 (CanLII), per Veale J

Intoxication

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

It is not so low as to render "relatively primitive actions such as walking a short distance, or unassisted vomiting" as being signs of capacity to consent.[2]

Drunkeness is not the same as incapacity.[3] Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not negate consent.[4] An intoxicated complainant may still have the ability to consent.[5]

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.[6]

Consent may be vitiated by abusing a position of trust, power or authority.[7]

Threats or abuse that occur after the event cannot go towards vitiation of consent.[8]

The judge may not make a finding that consent was "not possible" on the sole basis that the complainant was "drinking heavily."[9]

  1. ↑ R v Haraldson, 2012 ABCA 147 (CanLII), 102 WCB (2d) 531, per curiam, at para 7
  2. ↑ R v JWM, [2004] OJ No 1295 (S.C.)(*no CanLII links) , per Hill J
  3. ↑ R v Jensen, 1996 CanLII 1237 (ON CA), 106 CCC (3d) 430, per Rosenberg JA
  4. ↑ R v Merritt, [2004] OJ No 1295 (Ont. SCJ) (*no CanLII links)
  5. ↑ R v JR, 2006 CanLII 22658 (ON SC), CR (6th) 97 (Ont. SCJ), per T Ducharme J, at paras 17 to 19, 43
  6. ↑ R v Faulkner, 1997 CanLII 1193 (ON CA), 120 CCC (3d) 377, per Goudge JA
    Merritt, supra
    R v Hernandez, 1997 ABCA 297 (CanLII), [1997] AJ No 955, per Sulatycky JA
    R v Cedeno, 2005 ONCJ 91 (CanLII), 195 CCC (3d) 468, per Duncan J, at para 18
  7. ↑ R v Asfour, 2006 CanLII 577 (ON CA), 206 OAC 210, per Doherty JA
  8. ↑ Asfour, ibid.
  9. ↑ R v AW, 2008 NLCA 52 (CanLII), 856 APR 199, per Rowe JA

Abuse of Position of Trust (s. 265(3)(d) and 273.1(3)(c))

The term "exercise of authority" under s. 265(3)(d) is intended to capture relationships in which one party has "the power to influence the conduct and actions" of others.[1] 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.[2]

The accused will be in a position of authority when he "can coerce the complainant into consent by virtue of their relationship."[3] Such a relationship does not necessarily mean that lawful consent is impossible. Rather the Crown must prove beyond a reasonable doubt that the sexual activity was obtained by "the exercise of that coercive authority over the complainant."[4]

Section 273.1(3)(c) states "For the purpose of subsection (1), no consent is obtained if ...(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;"

The determination of whether the coercive exercise of authority vitiates consent requires considerations of elements including:[5]

  • the nature of the relationship
  • the specific circumstances surrounding the apparent consent
  • any other issues relevant to the assessment the nature of the relationship

The type of coercion suggested in s. 265(3) is not the same as that found in s. 273.1(2).[6]

Coercion under s. 265(3) addresses "consent obtained where the complainant submits or does not resist by reason" of the exercise of authority.[7]

Coercion under s. 273.1(2) include the use of "personal feelings and confidence engendered by that relationship to secure an apparent consent."[8]

Such positions of authority can include doctor-patient relationships or student-teacher relationships.[9]

  1. ↑ R v Matheson, 1999 CanLII 3719 (ON CA), 134 CCC (3d) 289, per Austin JA
  2. ↑ R v Geddes, 2015 ONCA 292 (CanLII), 322 CCC (3d) 414, per Doherty JA, at para 34
  3. ↑ Geddes, supra, at para 36 ("An accused stands in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship.")
  4. ↑ Geddes, supra, at para 36 ("The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the sexual activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant")
    R v Samkov, 2008 ONCA 192 (CanLII), [2008] OJ No 1005, per curiam, at para 7
    R v Farler, 2013 NSCA 13 (CanLII), 326 NSR (2d) 255, per Beveridge JA, at paras 77 to 78
  5. ↑ Geddes, supra, at para 37 ("The determination of whether apparent consent is vitiated by a coercive exercise of authority will require an examination of the nature of the relationship between the accused and the complainant, as well as the specific circumstances surrounding the apparent consent to the sexual activity in issue. There is no closed list of factors relevant to the assessment of the nature of the relationship and no one factor is necessarily determinative of the nature of the relationship. ")
  6. ↑ Hogg, supra
  7. ↑ Hogg, supra
  8. ↑ Hogg, supra
  9. ↑ Geddes, supra, at para 37

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), [2012] 2 SCR 584, per McLachlin CJ
  6. ↑ Cuerrier, ibid., at para 99
  7. ↑ Cuerrier, supra, at para 127

Honest but Mistaken Belief in Consent

Capacity for Consent for Under 16 Years of Age

See Also

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