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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
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