How Is Consent Defined By Canadian Courts?
Consent is often the critical issue in a sexual assault case. While all criminal charges are taken seriously, the Crown usually prosecutes sexual assault cases with particular stringency. As a result, if you or a loved one has been charged with sexual assault, you will want to work closely with an experienced assault lawyer in Toronto to build your defense.
In Canada, it is the responsibility of the individual who is initiating or pursuing the sexual activity to ensure that consent is freely given by the other party before engaging in any sort of sexual activity. To gain a better understanding of how consent is defined, keep reading.
What Is Consent?
Under subsection 273.1(1) of Canada’s Criminal Code, consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. Any conduct short of a voluntary agreement does not constitute consent.
Section 266 of the Criminal Code further defines “non-consent” as follows:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
For greater certainty, subsection 273.1(2) of the Criminal Code specifies in greater detail specific situations where there is no consent:
– Where the agreement is expressed by the words or conduct of a third party, i.e. by anyone other than the complainant;
– Where the complainant is incapable of consenting to the activity;
– Where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
– Where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
– Where 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.
Moreover, the accused cannot claim that they “mistakenly” believed that the complainant was consenting if:
– The accused’s belief is based on their own intoxication;
– The accused was reckless about whether complainant was consenting
– The accused chose to ignore things that would suggest that the complainant was not consenting; or
– The accused did not take proper steps to check that the complainant was consenting.
When alcohol or drugs are involved, the issues surrounding consent become even more complex as this will raise the question of whether or not the complainant had the capacity to consent.
In law, there are no magic words or actions that will automatically determine whether or not an individual consented.
Age of Consent In Canada
The age of consent is defined by the Criminal Code as the age at which someone can legally agree to sexual activity. This applies to all forms of sexual activity ranging from kissing to fondling to sexual intercourse.
Section 150.1 and 153 of the Criminal Code state that in Canada, the general age of consent is 16 years of age with exceptions as stated below:
A complainant who is 14 or 15 years old can legally consent to sexual activity with a partner who is less than 5 years older. This does not apply, however where the partner is in a position of trust or authority over the complainant, or is someone upon whom the complainant depends, or where the relationship that is exploitative of the complainant.
A complainant who is 12 or 13 years old can legally consent to sexual activity with a partner who is less than 2 years older. This does not apply, however, where the partner is in a position of trust or authority over the complainant, or is someone upon whom the complainant depends, or where the relationship is exploitative of the complainant.
Where the partner is in a position of trust or authority over the complainant, or where the complainant is dependent on him/her, or where the relationship is exploitative of the complainant, then a complainant who is under 18 years of age cannot consent.