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Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of either party involved in the “sexual” activity.
Consent is a defence to sexual assault. If the accused and their criminal defence lawyer can satisfy the court that the complainant actually consented to the sexual act, the accused will not be found guilty of sexual assault.
According to s. 273.1(1), “consent” is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. To constitute consent for legal purposes, the complainant must have consented voluntarily; thus, consent is meaningless if it is obtained through threats.
Moreover, the complainant must have consented to the specific sexual activity the court is considering. Thus, it is not a defence that the complainant consented to sexual activity with the accused in the past. He or she must have consented to the specific sexual act that is alleged to be objectionable.
Moreover, there are several situations in which the court deems that consent is “vitiated” – in other words, though it may seem that the complainant consented, his or her consent “doesn’t count” as a defence to sexual assault where the “consent” is not voluntary and with full knowledge of the nature of the sexual act. Under s. 273.2, consent is “vitiated” in a number of ways:
If the complainant is “incapable” of consenting because he or she is not old enough, or unable to understand due to extreme mental or physical disability, consent is vitiated by law. However, there are other special sections of the Criminal Code dealing with sexual assault against minors or the disabled, so the issue of consent would have to be considered in the context of the special rules associated with those offences, and the specific ages of the alleged offender and the complainant.
According to legal precedent, a complainant is “incapable” of consenting to sex if he or she is so intoxicated that his or her consent is meaningless. Thus, if the Court determines that the complainant was so intoxicated that he or she could not possibly have comprehended the significance of giving consent – even if it seemed to the accused at the time that the complainant was consenting – the consent will not count as a defence to sexual assault.
However, where the accused has a mistaken but honest belief in consent and that belief is held on reasonable grounds, they cannot be convicted, since there is a lack of mens rea or criminal intent.
