What Does Consent Mean with Sexual Assault?
Sexual assault cases often hinge on whether consent was given for any contact that occurred. Courts have ruled consent does not have to be verbal but must be freely given and ongoing, ensuring that both partners are comfortable at all stages of physical interaction.
From a legal perspective, consent can be expressed by the actions or body language of the person giving it. It can also be withdrawn at any point. If someone agrees to kiss you, that does not mean you have consent to grope them or remove their clothing. If you go beyond what has been consented to, you can be charged with sexual assault.
Section 273.1 (1) of the Criminal Code defines consent as the "voluntary agreement of the complainant to engage in the sexual activity in question." For greater certainty, ss.273.1(2) sets out specific situations where there is no consent. These include when:
- consent is expressed by another person other than the complainant;
- the complainant is incapable of consenting to the activity;
- where the accused abuses a position of trust, power or authority to induce someone to engage in sexual activity;
- the complainant expresses by words or conduct a lack of agreement to engage in the activity; or
- the complainant, having consented to engage in sexual activity, shows they no longer want to continue.
Sexual History Is not a Factor
Section 276 of the Code makes it clear that the complainant's history of sexual activity in no way suggests they are likely to consent to sexual activity in the future or that "he/she is less worthy of belief." This section restricts the admissibility of evidence to specific instances of sexual activity relevant to an issue at trial and to evidence that has "significant probative value which is not substantially outweighed by the danger of prejudice to the administration of justice."
Age of Consent
The age of consent is when a young person can legally agree to sexual activity, ranging from kissing and fondling to sexual intercourse. Generally speaking, the age of consent is 16 in Canada, with the exceptions detailed below.
According to the Department of Justice (DoJ), a 14- or 15-year-old can consent to sexual activity as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or "any other exploitation of the young person." But if the partner is five years or older than the 14- or 15-year-old, "any sexual activity is a criminal offence."
The DOJ adds a "close in age" exception for 12- and 13-year-olds. They can consent to sexual activity as long as their partner is less than two years older and there is no relationship of trust, authority, dependency, or other exploitation.
The age of consent can also increase to 18. The DoJ explains that a 16- or 17-year-old cannot consent to sexual activity if:
- their sexual partner is in a position of trust or authority towards them, such as a teacher or coach;
- the young person is dependent on their sexual partner for care or support; or
- the relationship is exploitative.
To determine whether a relationship is exploitative, the court will look at the age difference between the alleged victim and the accused, how the relationship developed (for example, secretly or over the internet) and whether the partner may have controlled or influenced the youth.
Honest Belief In Consent Defence
People charged with sexual assault sometimes believe the other party consented to the activity. Unlike consent, which is considered from the complainant's viewpoint, belief in consent is considered from the accused's perspective. To determine if the accused believed they had obtained consent, the court will consider the parties' conduct before and during the alleged sexual assault. That includes the complainant's behaviour and what led the accused to believe consent was given.
As the Supreme Court of Canada (SCC) noted in a seminal 1999 decision, "For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed the complainant effectively said 'yes' through her words and/or actions."
Section 273.2 limits the scope of the defence of honest belief in consent to sexual activity, stating it is not available where the accused's belief arose from the accused's self-induced intoxication. This defence is also not available where the accused's belief in consent arose from recklessness or willful blindness or when they failed to take "reasonable steps to ascertain whether the complainant was consenting."
In June 2022, amendments to the Criminal Code relating to self-induced extreme intoxication came into force. In the previous month, The SCC ruled that the section of the Code that prevented the use of the extreme intoxication defence for most crimes of violence was unconstitutional.
According to the Department of Justice, the amendments ensure that an "individual who harms another person while in a state of extreme intoxication will be held criminally responsible for their actions if there was a foreseeable risk that they could violently lose control over their actions when they consumed the intoxicants, and they failed to take enough care to prevent that risk."
Jian Ghomeshi and Consent
In 2014 and 2015, CBC radio personality Jian Ghomeshi was the subject of numerous allegations of sexual assault and sexual harassment. His accusers said he never asked for consent before making sexual advances. On the day he was fired from CBC in 2014, Ghomeshi wrote on Facebook that he had been unjustly terminated due to "unsavoury" but consensual sexual activities in his private life and said that "sexual preferences are a human right."
According to court documents, one of the women testified they were kissing on a first date when suddenly he grabbed her long hair and yanked it "really, really hard." Another woman described how he put his hand onto her throat and "pushed her forcefully to the wall, choking her and slapping her in the face."
In dismissing all charges against Ghomeshi, the judge noted: "Courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants … the twists and turns of the complainants' evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful."
The Rehtaeh Parsons Case
When Rehtaeh Parsons turned 15 and started high school, she made a new group of friends. One night they began drinking, and she was left alone with four boys. One of the boys sexually assaulted her, while a second took photos. When Rehtaeh showed up at school the following week, her peers publicly shared the photo.
According to the Independent Review of the Police and Prosecution Response to the Rehtaeh Parsons Case, "she was devastated by the circulation of an intimate photograph taken without her consent, as well as the bullying and cyberbullying that resulted.
An investigation into possible sexual assault and child pornography offences took close to a year to conclude. No charges were laid, even though Rehtaeh was underage. In 2013 she took her own life.
Her death sparked outrage across Canada, and in 2015, the federal government made the distribution of explicit photos or video recordings without consent a criminal offence under s.162.1 of the Code.
Ongoing Education and Awareness
Ongoing attention surrounds the issue of consent in Canada, partly fueled by the critical discussions arising from the #MeToo movement. Many schools and organizations hold workshops, and some politicians have proposed a designated week to raise awareness about consent, highlighting its continued significance. Those working with sexual assault victims welcome this attention as it keeps the issue in the news and ensures that stories remain alive.
As Rehtaeh Parsons's mother noted, "Every time her name is mentioned, her story is told – that keeps her alive in so many ways."
Disclaimer: The information provided in this blog is for general educational purposes only and is not intended as legal advice. Each case is unique and the laws discussed may not apply to your specific situation. Please consult a qualified lawyer in your area for personalized guidance. The information in this blog is not guaranteed to be accurate or up-to-date and should not be relied upon as a substitute for consultation with a professional.