What is consent?
Sexual assault includes all unwanted sexual activity including intercourse, touching, kissing, grabbing and rubbing. These acts are only legal when both parties consent. Section 273.1(1) of the Criminal Code defines consent 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 conducts. Silence and passivity does not on its own equate to consent.
In deciding whether or not there was consent to the sexual activity, a judge will assess the complainant’s state of mind at the time the touching occurred. Even if the complainant testifies that there was no consent, the judge must still assess if consent did exist at the time of the touching. An example of this arises where defence contends that the complainant consented at the time, but then had a change of heart after the fact, for whatever reason.
The Criminal Code provides an outline of situations in which consent does not exist:
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 someone abusing a position of trust, power or authority
- Someone consents on someone else’s behalf
A person cannot claim 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 determine if there was consent.
Age of Consent
The age of consent for sexual activity is, with certain exceptions, 16 years. However, the age of consent is 18 years where the sexual activity occurs in a relationship of authority, trust or dependency, involves prostitution or pornography.
There are exceptions to the age of consent for sexual relationships for people who are close in age. This means that 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.