The Law of Consent in Sexual Assault

Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.

Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.

 

The Criminal Code also says there is no consent when:

  • Someone says or does something that shows they are not consenting to an activity
  • Someone says or does something to show they are not agreeing to continue an activity that has already started
  • someone is incapable of consenting to the activity, because, for example, they are unconscious
  • the consent is a result of a someone abusing a position of trust, power or authority
  • someone consents on someone else’s behalf.

 

A person cannot say they mistakenly believed a person was consenting if:

  • that belief is based on their own intoxication; or
  • they were reckless about whether the person was consenting or;
  • they chose to ignore things that would tell them there was a lack of consent; or
  • they didn’t take proper steps to check if there was consent.

 

The responsibility for ensuring there is consent is on the person who is initiating or pursuing the sexual activity. When someone has said no to sexual contact, the other person cannot rely on the fact that time has passed or the fact that the individual has not said no again to assume that consent now exists.

No one can legally consent in advance to sexual activity in the future when they will be unconscious. No one can legally consent to activity where they will suffer bodily harm, such as activity that will cause serious bruises, stitches or broken bones.

The law about sexual activity involving young people has recently changed. Generally, the age of consent for sexual activity is 16 years. However, the age of consent is 18 years where the sexual activity involves prostitution, pornography or occurs in a relationship of authority, trust or dependency (e.g., with a teacher, coach or babysitter).

There are exceptions for sexual relationships for people who are close in age. This means that a person as young as 14 can legally consent to sexual activity with someone why is less than five years older than them as long as there is no relationship of trust, authority or dependency or any other exploitation. Similarly, a 12 or 13 year old can consent to sexual activity with another young person who is less than two years older and with whom there is no relationship of trust, authority or dependency or other exploitation.

The Supreme Court of Canada has said consent laws should not be based on stereotypes. Therefore, judges and juries cannot rely on the fact that a person has consented to sexual activity with someone in the past to mean that they consented the next time. It also means that someone’s sexual history should not be used to show that they automatically consented. There are rules about when a person’s past sexual history can be brought up in court.

The bottom line regarding the law of consent is that only yes means yes!