Consent and Restraint in the Law of Assault

AuthorMichael Plaxton
[ 235 ]
cha pter 6
A number of oences require the Crown to show that the defendant
acted without the consent of another individual. Assault, aggravated
assault, and sexual assault all demand proof that there was an absence
of consent to the defendant’s application of force. Section .()
of the Code states [emphasis added]: “Everyone who knowingly pub-
lishes, distributes, transmits, sells, makes available or advertises an
intimate image of a person knowing that the person depicted in the image
did not give their consent to that conduct, or being reckless as to whether
or not that person gave their consent to that conduct, is guilty [of an
oence].” Section . makes it an oence to take or attempt to take
a weapon in the possession of a police ocer without his or her con-
sent. Section () makes it an oence to take another’s vehicle with-
out the owner’s consent. Under section ()(b)(i), it is an oence to
fraudulently deface a brand on cattle without the owner’s consent
and, under section (), an oence to fraudulently remove a mark
or number on dri timber without the owner’s consent. Sections
() and  prohibit the reproduction, concealment, or removal
of a trademark without the owner’s consent. And section ()
makes it an oence to “record in a movie theatre a performance of a
Criminal Code, RSC , c C-, s  [Criminal Code].
[ 236 ] , ,  
cinematographic work . . . or its soundtrack” without the consent of
the theatre manager. This list is not exhaustive.
Consent is mentioned in other contexts as well. Sometimes,
the presence of consent is treated as an element of an oence — for
example, the oence of polygamy, or the constructive or joint pos-
session of contraband materials or substances. Where the Crown is
called upon to show the presence of consent, it is the defendant’s con-
sent to some activity or course of action that is in issue — not that of
a third party. For the purposes of my discussion here, I will focus on
the circumstances under which the absence of consent is an element
of the oence.
Consent is a protean concept, and Parliament has used the lan-
guage of “consent” in dierent ways, depending on the oence in
issue. The reason is clear enough. To say that a person can consent to
another’s use of her property or body is to empower that person to some
degree. The individual who can legally consent to another’s touching
is thereby empowered to play contact sports, dance, shake hands and
exchange warm embraces with others, enter crowded subway cars and
music venues, and engage in a range of sexual acts. Indeed, as we have
recently seen, the ability to legally consent to certain forms of medical
treatment is arguably central to what it means to “die with dignity.”
The ability to legally consent to others’ use or manipulation of one’s
property makes it possible to do more with those things, as well as
with the people who are thereby authorized to use them. Consent, as
a legal concept, is autonomy- (or agency-) enhancing.
But there is a ipside. When Parliament recognizes the ability
to legally consent to certain uses of one’s property or body, it also
expands the possibility of exploitation — the possibility that others
will take unfair advantage of one’s physical, psychological, emotional,
nancial, or other vulnerabilities for their own gain or that of a third
party. An individual may acquiesce to, or even enthusiastically invite,
See, for example, ibid, ss (), ()(b), () and ..
Ibid, s ().
Ibid, s ().
Carter v Canada (Attorney General),  SCC , especially paras –.
See Heidi Hurd, “The Moral Magic of Consent” ()  Legal Theory .
[ 237 ]
Consent and Restraint in the Law of Assault
uses of her body or property as a result of (among other things) fraud,
coercion, ignorance, social pressure and norms, or nancial hard-
ship. Assailants may falsely claim that consent was given, knowing
that there will be little evidence disproving their account, or aware
that police ocers, Crown prosecutors, or juries will be disinclined
to believe the complainant. When the law forecloses the possibility
of consenting to certain uses of our bodies and property, it blocks
others from engaging in these forms of exploitation. To that extent,
restricting the ambit of what we can legally consent to may have
the eect of increasing the integrity of our bodies and proprietary
There is, then, an irreducible tension quietly underpinning any
discussion of consent, between the protection of integrity and the
promotion of agency. But context matters. Some uses of body and
property may be more inherently troubling — more prone to, or sug-
gestive of, exploitation — than others. In recognition of that fact,
Parliament has not proceeded on the basis that “consent” means the
same thing in all contexts. What “consent” means, and how it can be
given, will depend on the nature of the use, the relative positions of
the parties involved, and a range of other factors. This point can be
illustrated by looking to two oences that are, at one and the same
time, closely linked and miles apart from one another: assault and
sexual assault.
Put in this way, the concept of exploitation stands in an ambiguous relation to that
of consent, since there may be exploitation even in the absence of coercion or the
presence of consent (to the extent that both are construed narrowly). See Joel Fein-
berg, Harmless Wrongdoing: Moral Limits of the Criminal Law, vol  (New York: Oxford
University Press, ) at –.
I do not want to present this tension as starker than it is. An individual whose integrity
is better-protected may have his or her range of life options expanded to some extent
just because his or her safety is subject to fewer threats. My point is that those life
options cannot include participation in social practices involving a certain degree of
spontaneous or unexpected physical touching. It is in that sense that integrity and
agency are in tension with one another.

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