In What Situations Is Consent Not a Defence to Sexual Assault?

A sexual assault conviction means potentially life-changing consequences in Canada.

If wrongful accusations are made or there is considerable ambiguity in the case, it is essential to defend the charges aggressively. This may not prevent reputational damage but it can prevent jail time and a permanent criminal record.

One of several available defences in sexual assault cases is that the sexual contact was consensual or there was an honest but mistaken belief in consent. But these consent defences are not always available in sexual assault cases. Let’s find out more about this complex area of criminal law…

The law of consent in Canada

Consent is defined in the Criminal Code as “the voluntary agreement to engage in the sexual activity in question.” It is only considered legal when both parties consent and it requires an affirmative response (silence is not consent).

The law of consent refers to the age at which a person can legally agree to sexual activity, which is broadly defined in Canada. The general age of consent is 16—but there are some notable exceptions.

When the sexual activity is between individuals older than the age of consent, meaningful consent is presumed. However, the absence of consent would make the act a criminal offence anywhere in Canada—regardless of age—potentially leading to charges of sexual assault, which carry harsh penalties, including mandatory minimum jail sentences.

The main exceptions to the consent law are:

• A 16- or 17-year-old cannot legally consent to any sexual activity in Canada if:

• Their sexual partner is in a position of trust or authority towards them, such as a coach or teacher.
• The young person is dependent on their sexual partner, such as for care or support.
• The relationship between the young person and their sexual partner is exploitative.

• Sexual relationships between people who are close in age:

• A 14-year-old can consent to sexual activity with someone who is less than five years older than them as long as there is no relationship of authority, trust or dependency.
• A person aged 12 or 13 can legally consent to sexual activity with another person who is less than two years older than them as long as there is no relationship of authority, trust or dependency.

These exceptions surprise some people who erroneously claim that all individuals over 16 can legally consent to any sexual activity—or that all sexual activity with an individual under the age of 16 is illegal.

Main defences to sexual assault

An individual accused of sexual assault or aggravated sexual assault needs a powerful defence to prevent life-changing consequences.

Depending on the circumstances of the allegations, there are three main defences to sexual assault:

• The sexual act did not occur: if there is a lack of physical evidence that the sexual assault happened.
• The sexual act occurred but the complainant consented: sometimes a complainant claims that there was no consent when, in fact, there was.
• The sexual act occurred and the complainant did not consent but the accused had an honest but mistaken belief in consent.

What is “honest but mistaken belief in consent”?

An honest but mistaken belief in consent defence may be available to a defendant where the complainant denies that there was consent or provided incapacitated consent that was interpreted by the accused as consent. 

This defence is not available if there was willful blindness or recklessness towards consent when the sexual act was initiated. To be successful, the accused needs to show evidence of the following:

• Belief that the complainant was consenting (affirmative consent—not the absence of non-consent)
• A state of ambiguity that explains how the lack of consent could have been honestly understood by the defendant as consent.
• Appropriate attention was paid to the need for consent.

To apply this consent defence successfully in sexual assault cases in Canada, the defendant must show that reasonable steps were taken to ascertain consent and that the complainant communicated consent to engage in the sexual act. 

This defence can be extremely challenging because it requires s judge or jury to understand the circumstances known to the accused at the time of the sexual act.

What are “reasonable steps” to obtain consent?

“Reasonable steps” is a subjective term that is evaluated according to the circumstances of each case.

Generally, permission must be sought before the sexual act takes place and as the sexual activity escalates, partners should ensure that consent continues. Due to the lack of witnesses in such cases, it’s often one partner’s word against the other’s.

If the judge or jury is satisfied that the circumstances involve some ambiguity, it must be determined whether a reasonable person aware of the same circumstances would have taken further steps before proceeding with the sexual act. If so, the defendant will likely be convicted. If not, the defendant may be acquitted.

When is consent not a viable defence to sexual assault charges?

The two main consent defences to sexual assault charges—that consent was given and that there was a mistaken belief in consent—cannot be used if the complainant did not have the capacity to provide consent due to:

• Developmental disability
• Illness
• Duress (the consent cannot be freely given due to threats, force or intimidation)
• Sleep
• Intoxication

In these circumstances, the presumption of consent that normally applies to sexual activity is negated by the lack of capacity of the individual.

Consent cannot be a defence in cases of child sexual assault or child pornography because the presumption of consent does not exist for minors under the age of 16 except in the limited circumstances outlined above (the “close-in-age” exception).

Also, consent cannot be used as a defence where bodily harm is caused to the complainant. Nor is it a valid defence where the sexual activity is exploitative or perpetrated by an accused person who was in a position of trust, power or authority over the complainant at the time of the sexual activity.

It should also be noted that “consent in advance” and “consent by someone else” are not valid defences against sexual assault. Consent must be sought from the sexual partner at the time of the sexual activity to be valid.

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To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.