Consent

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 443-483

443

Consent

14

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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444Prosecuting 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 Crimi-

nal 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 pen-

etration 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 For exam-

ple, if the victim is led to believe the act is a medical procedure3 or is for a therapeutic

purpose,4 there will be no consent. Consenting to “rough sex” without further par-

ticulars of what this means “cannot usually be taken as consent to engage in whatever

acts of violence the other party wishes,” especially if the parties are strangers.5 And if

condom use is a condition of the victim’s consent, then failure of the accused to use

a condom means there was no valid consent.6

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; RvKirkpatrick, 2022 SCC 33 at paras 43-44.

3 RvMakray,[1982] OJ No 195 (QL), 70 CCC (2d) 479 (CA).

4 RvOrpin (2002), 165 CCC (3d) 56, [2002] OJ No 1541 (QL) (CA); RvDinardo,2014 ONCA 758.

5 RvAE,2021 ABCA 172 at para 34, a’d 2022 SCC 4.

6 RvKirkpatrick, supra note 2 at paras 43-44.

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Chapter  Consent 445

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 subjec-

tive internal state of mind toward the sexual touching at the time that it occurred.7

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.

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 they were 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 vic-

tim’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 oence. 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.8

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.9

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

form of words or gestures from the complainant that they are consenting to the sexual

activity in issue. It is an error to assume that unless and until a person says no, they

have implicitly given consent to any and all sexual activity. A belief that silence, pas-

sivity, or ambiguous conduct constitutes consent is a mistake of law and provides

no defence.10 (See Section II.D.1, “Honest But Mistaken Belief in Communicated

Consent,” below.)

7 RvEwanchuk, [1999] 1 SCR 330 at paras 25-26, 1999 CanLII 711.

8 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.

9 RvM (ML), [1994] 2 SCR 3 at paras 39-40, 1994 CanLII 77.

10RvBarton, supra note 2 at para 88 (SCC).

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