Canadian Consent Laws
Tuesday, September 26, 2023
Defining Sexual Assault in Canada
Canadian Criminal Code
Three-tier structure of sexual assault offences: s. 271, 272, 273
R v Chase [1987] SCC:
- Objective test – if a reasonable person saw the activity how would they perceive it?
- Factors include: part of body touched, nature of contact, accompanying words or gestures, all other circumstances (including threats and promises), intent or purpose of actor, motive of sexual gratification
- An assault is sexual if it truly impacts the victim’s integrity and dignity. The circumstances must be of a sexual nature and violate sexual integrity.
Defining Consent in the Canadian Criminal Code
- Federal jurisdiction (governs all provinces)
- Created in in 1892 by the Parliament of Canada and has been amended many times since
- Case law informs how we intepret and apply the Criminal Code
- 273.1 (1) Subject to subsection (3), "consent" means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.
- 153.1(3) No consent is obtained, for the purposes of this section, if (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) 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.
Defence of Mistaken Belief of Consent
Penalties
Case Law on M.B.O.C.
s. 273.2: Mistaken Belief of Consent is not a defence when:
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
R v Barton [2019] SCC: The mens rea defence of honest and mistaken belief must be based on the complainant’s communication by words or conduct – if consent was unclear, the accused must have taken reasonable steps – reasonable steps are assessed objectively and subjectively
- Under s. 271 of the Code, if you commit a sexual assault and the Crown proceeds as an indictable offence, you will face a maximum prison term of 10 years
- If the victim is under the age of 16 years, there is a minimum one-year jail term and a maximum penalty is 14 years behind bars