Sexual offences have been the site of much controversy and change over the past three decades of Canadian criminal law. In 1982, Parliament abolished the offence of rape and replaced it with three new offences of sexual assault. The offences - sexual assault under section 271; sexual assault with a weapon, threats to a third party, or causing bodily harm under section 272; and aggravated sexual assault under section 273 - were deliberately modelled after the corresponding assault offences in sections 266 to 268 of the Code in an attempt to emphasize that sexual assault is a crime of violence. The actus reus was broadened from rape to sexual assault and the new offences, unlike the old offence of rape, applied to both genders and to a man who sexually assaulted his wife.
In 1992, Parliament again reformed the offence of sexual assault in order to emphasize factors that were particular to the context of sexual encounters and violence. Parliament defined consent to mean the voluntary agreement to engage in the sexual activity in question. It provided a "no means no" law that states that there will be no consent if the complainant, having initially consented to engage in sexual activity, expresses by words or conduct, a lack of agreement. The law also provides that there will be no consent if the complainant is incapable
of consenting, is induced to consent by an abuse of a position of trust, power, or authority, or if a third party purports to provide consent.197
The law also addressed the mens rea for sexual assault by placing a se ries of restrictions on the defence that the accused had a mistaken belief that the complainant was consenting to the sexual activity.
There are other sexual offences that relate specifically to sexual activity with children. In 1990, the Supreme Court struck down the of-fence of statutory rape of a girl under fourteen years of age regardless of the accused’s belief about the girl’s age or the girl’s consent. The Court concluded that the offence was an absolute liability offence because it required no fault in relation to the age of the girl.198It also concluded that the legitimate objective of protecting children could be satisfied by new and broader offences of sexual interference that would protect both boys and girls and provide the accused a limited defence if he or she took all reasonable steps to ascertain the age of the child,199as well as a defence in cases where the accused was close in age to the child.200These new offences, like the 1982 sexual assault reforms, expand the actus reus. They apply to sexual interference, invitation to sexual touching, and sexual exploitation.201The age of consent, including for those offences, has recently been raised from fourteen to sixteen years of age.202
The actus reus of sexual assault is extremely complex because it involves a generic definition of assault, a specific definition of what constitutes consent for the purpose of sexual assault offences, the Court’s interpretation of consent as depending on the subjective views of the complainant, as well as common law restrictions that vitiate consent.
Section 265 provides a generic definition that defines all assaults to include the intentional application of force, directly or indirectly, to another person without that person’s consent203or attempting or threatening by acts or gestures to apply force if it causes the other person to
believe upon reasonable grounds that the accused has the ability to effect his or her purpose.204These two provisions define different ways of committing an assault.205The result is a broad definition of assault that can include any touching without consent.
The courts have distinguished sexual assaults from assaults on the basis of whether the circumstances viewed objectively are sexual. The intent or motive of the accused to obtain sexual gratification may be a factor, but it is not a requirement. Sexual assault differs from the sexual offences with respect to young persons in sections 151 through 153.1 of the Code because it does not require that the touching be for a sexual purpose.206The courts will examine all the circumstances including "the part of the body touched, the nature of the conduct, the words and gestures accompanying the act and all other circumstances surrounding the conduct"207in determining whether the assault is sexual. The Supreme Court has determined that a man grabbing a fifteen year old around her breasts and shoulders while saying "Come on, dear, don’t hit me, I know you want it" was an assault of a sexual nature.208More controversially, that Court has also held that a father’s actions in grabbing his three-year-old son’s genitals causing bruising and severe pain in an attempt to discipline the child who had been grabbing the private parts of others was a sexual assault because it invaded the child’s sexual integrity. Sopinka J. dissented on the basis that the father’s actions constituted assault, not sexual assault.209The Court has continued to confirm that with respect to sexual assault "the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour."210
In 1992, Parliament enacted section 273.1, which defines consent for the purposes of the sexual offences as "the voluntary agreement of the complainant to engage in the sexual activity in question." There is, for ex-
ample, no voluntary consent when the accused threatened to distribute nude photographs of his ex-girlfriend if she did not have sex with him.211As will be discussed in greater detail later in this chapter, the 1992 reforms were called the "no means no" reforms because they also provide a concrete list of circumstances in which consent would not be obtained. The idea was to provide a legal definition of what did and did not constitute consent. A person who thought that no meant yes or that consent could be given by a third party or by a person who was not capable of giving consent would arguably have a mistaken belief about the law, which, as discussed in chapter 3, cannot be an excuse for criminal conduct.
In a very important decision rendered in 1999, R. v. Ewanchuk,212the
Supreme Court interpreted the actus reus of sexual assault as requiring proof of three elements "i) touching, ii) the sexual nature of the conduct, and iii) the absence of consent." The Court held that the touching and sexual nature were determined on an objective basis, but that the third factor of absence of consent "is subjective and determined by reference to the complainant’s internal state of mind towards the touching at the time that it occurred."213If the complainant says that she did not consent, the only issue is whether she is a credible complainant. "The accused’s perception of the complainant’s state of mind is not relevant"214when determining whether there was consent for the purpose of determining whether the actus reus has been committed. The accused’s belief that the complainant consented is only relevant to determine the mens rea of the offence.
The Supreme Court in Ewanchuk rejected the defence of implied consent to sexual assault.215In other words, it rejected the idea that although the complainant did not actually consent, her conduct satisfied an objective standard of implied consent. Thus, as a matter of determining the actus reus of consent "[t]he absence of consent . . . is subjective and determined by reference to the complainant’s subjective internal state of mind toward the touching, at the time it occurred."216The trier of fact "may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complain-
ant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established."217On the facts of Ewanchuk, the Court reversed an acquittal in a case where a man repeatedly made sexual advances to a seventeen-year-old woman who was applying for a job. The Court held that the judge’s determination that the woman subjectively did not consent to the repeated sexual touching and that she subjectively feared force from the accused should have been determinative that there was no consent for the purpose of determining whether the actus reus of sexual assault had occurred.
The existence of consent for the purpose of defining the actus reus of sexual assault as a result of Ewanchuk depends on the subjective perceptions of the victim as opposed to external and objective standards of law. Similarly, consent will be negated by the complainant’s fear of the application of force regardless of the reasonableness of the fear or whether it was communicated to the accused. A statement by the victim that she did not consent or did so because of fear will be determinative unless it is found not to be a credible statement...