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” in 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:
(1) 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.
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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.
(2) Consent is also vitiated if the accused is (a) in a position of trust, power, or authority, and (b) he or she uses that position to induce the complainant to perform sexual activity. This section applies to teachers, bosses, psychiatrists, doctors, and other individuals who have a relationship of power, control, or dominance over the complainant. The person must not only be in a position of power, but must abuse that power to convince the complainant to consent to sex.
(3) Consent can also be vitiated by conduct. Thus, even if the complainant says the word “yes”, but expresses somehow by words or actions that he or she actually means “no”, the consent will not count at law. Moreover, if part way through the sexual act, the complainant expresses through words or conduct, that he or she did not wish to continue, any sexual activity after that point will be considered non-consensual.
(4) The court must also consider the accused’s own mental state to determine whether consent is a valid defence. The defendant cannot claim that the complainant indicated consent through words or actions if the accused’s belief in consent arose from his or her own self-induced intoxication or recklessness or willful blindness. In other words, if the accused went through with the sexual activity without any regard to whether the complainant was consenting (recklessness), or purposefully ignoring any signs that the complainant might not be consenting (willful blindness), then consent is vitiated. Moreover, if the accused was so drunk that they didn’t pay attention to whether the complainant was consenting, this is not a defence to sexual assault. If, however, the accused became intoxicated through no fault of their own, for example, if their drink was drugged at a party, the court may take this into account when deciding whether to accept the defence.
As a general rule, under s. 272.2(b), the accused is under a legal obligation to take steps, in the circumstances known the accused at the time, to ensure that the complainant consents to the sexual act.
Finally, under s. 265(2), consent is vitiated if the complainant only consented to sexual activity because of fraudulent representations made by the accused. Thus, if the accused committed fraud in order to obtain consent, the complainant’s consent would not “count”. However, only certain types of fraud vitiate consent. These are fraud as to the actual nature of the act or any bodily harm that might result from the act. For example, if a doctor told his patient that he was performing a medical procedure to obtain her consent and then actually committed a sexual assault, that would constitute fraud as to the nature of the act, and the patient’s consent would be vitiated. Or, if the accused told the complainant that the sexual activity they were going to engage in would not be violent, and then proceeded to act violently, the complainant’s consent would be vitiated due to fraud. However, if the accused simply lied about their name, age, marital status, job, or other personal details, this would not constitute fraud for the purpose of vitiating consent.
There is some case law supporting the argument that lying about your HIV status constitutes a form of fraud which can vitiate consent. Thus, if the complainant consented to sex based on the accused’s statement that he or she was not HIV positive, consent would be vitiated due to fraud and the accused would likely be found guilty of sexual assault. Recently, there have been prosecutions of individuals for sexual assault and criminal negligence causing harm or death, where the accused was HIV positive and did not disclose that fact to his partner prior to unprotected sexual activity.