Consent

• Author: Daniel Brown/Jill Witkin
• Pages: 397-433

397

14

Consent

I. The Meaning of Consent ...................................

A. Overview .......................................... 

B. Crown Must Prove a Lack of Factual Consent ............. 

C. Consent Is Subjective ................................ 

D. Accepted Evidence of Factual Lack of Consent ............ 

II. Limits of Consent ......................................... 

A. Scope of Consent ................................... 

B. No Advance Consent ................................ 

C. Statutory Vitiation of Consent .......................... 

D. Defences to Consent ................................. 

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398Prosecuting and Defending Sexual Oence Cases

I. The Meaning of Consent

A. Overview

In a sexual oence case, consent is often the central issue in the prosecution. Consent

to sexual activity must be real and reflect the exercise of the victim’s right to choose

when, how, and by whom to be touched. In addition to proving the sexual act, the

Crown must prove lack of consent beyond a reasonable doubt. Consent can also be

vitiated in a number of circumstances. Since most sexual interactions occur in private,

the issue of whether or not the victim consented is not always clear, and it may be

dicult to produce the requisite proof. This chapter will discuss the various issues

surrounding consent in sexual oence cases and identify situations where consent

may be negated by statute or common law.

B. Crown Must Prove a Lack of Factual Consent

A lack of consent on the part of the victim is a crucial element for the prosecution to

establish in a sexual oence case. Consent is defined in section 273.1(1) of the Crim-

inal Code1 as follows:

Meaning of consent

273.1(1) Subject to subsection (2) and subsection 265(3), consent means, for the pur-

poses of sections 271, 272 and 273, the voluntary agreement of the complainant to

engage in the sexual activity in question.

Consent must not be considered in the abstract but must be linked to the “sexual

activity in question” that encompasses the specific physical sexual act, the

sexual nature of the activity, and the identity of the partner. Agreement to one form

of penetration is not agreement to any or all forms of penetration and agreement to

sexual touching on one part of the body is not agreement to all sexual touching.2

C. Consent Is Subjective

In contrast to the other two elements of the actus reus (i.e., touching and the sexual

nature of the contact), which are determined using an objective standard, the absence

of consent is a subjective factor that is determined by reference to the victim’s sub-

jective internal state of mind toward the sexual touching at the time that it occurred.3

For this element of the oence, the court must consider all of the surrounding cir-

cumstances, including the victim’s words and actions before and during the incident.

1 RSC 1985, c C-46.

2 R v JA, 2011 SCC 28 at paras 3, 34, 41; R v Barton, 2017 ABCA 216 at paras 182-83; R v Barton,

2019 SCC 33 at para 88.

3 R v Ewanchuk, [1999] 1 SCR 330 at paras 25-26.

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Chapter  Consent 399

This is largely an issue of credibility that must be weighed together with the other

evidence presented at trial. The trier of fact may accept the victim’s direct evidence

and conclude that he or she was not consenting, or the trier of fact may be left in a

state of reasonable doubt about the victim’s lack of consent. In such circumstances,

the trier of fact will then consider any other circumstances that could legally negate

consent (e.g., in s265(3) or s273.1 of the Criminal Code). The accused’s perception

of the victim’s state of mind is not a relevant consideration in determining whether

the victim was in fact consenting to the sexual activity. The accused’s belief as tothe

victim’s consent is only relevant when a defence of honest but mistaken belief in

consent is raised in the context of the accused’s denial of mensrea.

D. Accepted Evidence of Factual Lack of Consent

The Crown has the burden of establishing beyond a reasonable doubt that the

victim was not consenting to the contact forming the basis for the offence. The

Crown has the ability to argue in the alternative: it can tender evidence to prove

that the victim did not consent or, alternatively, that the victim did not have the

ability to consent.4

The Supreme Court of Canada (SCC) has found that there is no minimal “word

or gesture of objection” necessary to find a lack of consent. Lack of resistance must

not be equated with consent.5

Consent to engage in sexual activity requires some positive communication in the

form of words or gestures from the complainant that he or she is consenting to the

sexual activity in issue. It is an error to assume that unless and until a person says

no, he or she has implicitly given consent to any and all sexual activity. A belief that

silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and

provides no defence.6 (See Section II.D.1, “Honest But Mistaken Belief in Communi-

cated Consent,” below.)

The evidence often includes the victim’s testimony of lack of consent. However, in

cases where the victim does not have a specific memory of the incident, for example,

on account of intoxication, testimony about whether the victim “would have” con-

sented has occasionally been admitted as reliable on the issue of consent.7

4 R v Basra, 2009 BCCA 520 at para 40. The Court concluded that evidence of a struggle indi-

cated that the victim resisted or was incapacitated, either of which supported the finding that

she did not consent. See also Section II.C, “Statutory Vitiation of Consent,” below.

5 R v M (ML), [1994] 2 SCR 3, 89 CCC (3d) 96.

6 R v Barton, supra note 2 at para 88 (SCC).

7 R v Kontzamanis, 2011 BCCA 184 at paras 27-31. The Court accepted testimony that the vic-

tim had no memory of the sexual activity but that the accused repulsed her and she had no

interest in sexual activity with anyone at that time. See also Section II.C.4.a.v, “Pre-Existing

Attitudes and Assumptions,” below.

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