without clear consent sexual activity is sexual assault.
Sexual consent is sexual behaviour that both parties consent to. While this may seem like an unequivocally clear concept there are certain circumstances that may arise where consent is not black and white.
How is Consent defined in The Criminal Code of Canada?
The Criminal Code of Canada defines consent in section 273.1(1), as the voluntary agreement to engage in sexual activity.
The law acknowledges what the individual was thinking and feeling at the time of the sexual activity.
Any form of sexual touching is only lawful if an individual, either through words or conduct, affirmatively communicates their consent.
Under the Criminal Code a person’s silence or passivity does not equal their consent.
The Criminal Code states that consent is vitiated when:
an individual by action or words communicates that they are not consenting to an activity.
an individual by words or action communicates that they do not consent to the continuation of an activity that has already commenced.
an individual is incapable of consenting to the sexual activity because they are unconscious, too intoxicated or of some other mentally diminished capacity.
the consent is a result of an individual abusing a position of trust, power or authority.
an individual cannot consent for someone else.
What is Sexual Assault?
In the Canadian legal system sexual assault has a broad definition, that includes all unwanted sexual activity.
Any sexual activity, including the following actions, in a context in which they are unwanted:
If someone can demonstrate that they had a reasonable but mistaken reason to believe that the activity in question was consented to, they are not criminally culpable for the offence of sexual assault.
An individual cannot say that they believed the involved individual was consenting if:
That belief of consent was based on their own intoxication;
They were reckless about whether the individual is consenting;
They choose to ignore things that would communicate to them that there was a lack of consent;
They failed to take necessary steps to ensure that there was consent.
Who is responsible for ensuring that there is consent?
It is the individual who is initiating or pursuing the sexual activity who is responsible to ensure that the sexual activity is consensual.
If an individual states or demonstrates that they do not consent to sexual activity, the other individual cannot rely on the passage of time or the fact that the individual did not again state or demonstrate that they did not consent, to assume that consent now exists
An individual cannot legally consent to sexual activity in advance of the sexual activity when they will be unconscious.
An individual cannot legally consent to an activity that will cause them to suffer bodily harm, such as an activity that will cause serious bruises, stitches or broken bones.
What is the legal age of Consent in Canada?
The legal age of sexual consent in Canada is sixteen.
The law includes a “close-in-age exception,” meaning fourteen and fifteen year-olds can have sex with someone who is less than five years older