Sexual consent is defined as sexual behaviour that both parties agree to. Although it may appear as a crystal clear concept at first, there are certain situations that can make consent a bit more ambiguous.
Under The Criminal Code of Canada, consent is defined in section 273.1(1) as the voluntary agreement to engage in sexual activity. The law considers the thoughts and feelings of the individual at the time of the sexual activity. Sexual touching is only deemed lawful if an individual communicates their consent either through words or conduct. Importantly, a person's silence or passivity is not regarded as consent under the Criminal Code.
Consent, according to the Criminal Code, becomes invalidated under certain conditions. These conditions arise when an individual communicates through actions or words that they do not consent to an activity or do not consent to the continuation of an activity already started.
If an individual is unable to consent due to unconsciousness, extreme intoxication, or any other mentally diminished capacity, consent is also vitiated. Consent obtained through an abuse of trust, power, or authority is considered invalid. Moreover, an individual cannot give consent on behalf of someone else.
Sexual assault in the Canadian legal system is broadly defined to encompass all unwanted sexual activity. This includes actions such as sexual grabbing, kissing, fondling, and sex when they are performed in a context where they are unwanted. It's noted that if someone can prove that they had a reasonable but mistaken belief that the activity was consented to, they will not be held criminally liable for the offence of sexual assault.
An individual's belief that consent was granted cannot be claimed under several circumstances. If that belief was based on their intoxication, it is not valid. Similarly, if the person was reckless about ascertaining whether there was consent, ignored signs indicating a lack of consent, or failed to take the necessary steps to ensure there was consent, they cannot claim that they believed the involved individual was consenting.
The responsibility of ensuring consent for sexual activity falls on the individual who is initiating or pursuing the sexual activity. If the other individual signals or expresses that they don't consent to the activity, it's not permissible to assume consent based merely on the passage of time or the absence of further expressions of non-consent. It's also important to remember that one cannot legally consent in advance to a sexual activity for a time when they would be unconscious, nor consent to an activity which will result in bodily harm, such as causing serious bruises, stitches or broken bones.
In Canada, the legal age for giving sexual consent is sixteen years. However, the law provides a "close-in-age exception," which allows fourteen and fifteen-year-olds to engage in sexual activities with individuals who are less than five years older than them.