Legal consent to sexual activity requires an understanding that consent must be explicit each and every time sexual activity is engaged in with another person. Just because two people have been dating for a long time, or are married to one another, does not automatically negate the requirement that consent to sexual activity is active, willing, and voluntary.
It’s been long understood in Canadian culture that rape is about power and control, it’s not about mere sexual gratification. Canadian courts have determined that sexual assault is inherently violent in nature.
To ensure you are not breaking Canadian Law, you must elicit a positive response every time you engage in sex with your partner. There is a difference between “yes” and passive silence – this difference is well recognized in our legal system.
It is very hard for most people charged with sexual assault to understand the challenge they face in raising a reasonable doubt as to consent. This is because the question of consent is a question of law. You should consult with a lawyer to gain an understanding of the jeopardy you face and the possible defences available to you. The Criminal Code of Canada provides the following provisions respecting consent in a charge of sexual assault:
Meaning of Consent 
273.1 (1) Subject to subsection (2) and subsection
265(3), consent means, for the purposes of sections 271,
272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Consent
(1.1) Consent must be present at the time the sexual activity in question takes place.
Question of law
(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.
No consent obtained
(2) For the purpose of subsection (1), no consent is obtained if
- (a) the agreement is expressed by the words or conduct of a person other than the complainant;
- (a.1) the complainant is unconscious;
- (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
- (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
- (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
- (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of an agreement to continue to engage in the activity.
The Supreme Court of Canada elaborated on the interpretation of the Criminal Code provisions in R v Barton 2019 SCC 33. The court explained that it is imperative that people understand the legal implications of consent because where an accused is mistaken about what consent means in Canadian law, there will be no defence available to the accused. The Supreme Court held that the term “honest but mistaken belief in consent” needs to be understood as “honest but mistaken belief in communicated consent”.
In other words, it is an error of law to assume that consent is implied unless and until a person says “no”. Implied consent rests on the assumption that unless a person protests or resists, he or she should be deemed to consent, and the courts have consistently said that this perspective has no place in Canadian law.
The Supreme Court’s decision in Barton follows the intention of Parliament in its enactment of section 273.2 of the Criminal Code of Canada, which says, among other things, that belief in consent does not exist where the accused was being willfully blind or did not take steps to become certain that their sexual partner was consenting or whether his or her words were affirmatively expressed.
Where Belief in Consent, Not a Defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
- (a) the accused’s belief arose from
- (i) the accused’s self-induced intoxication,
- (ii) the accused’s recklessness or wilful blindness, or
- (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
- (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
- (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
Any kind of sexual activity without clear consent is sexual assault
Consent should never be assumed or implied. To avoid falling unwittingly into illegal conduct, ensure that an explicit voluntary agreement between people engaging in sex exists. Be aware that the agreement can be called-off by either person at any time during the activity. Continuing sexual activity after a partner says “no” or “stop” or expresses a lack of consent through any other body language or activity, can lead to a sexual assault conviction.
People in domestic relationships can fall into the dangerous territory of mistaken belief in communicated consent because of a misunderstanding that sexual consent is implied by virtue of the long-standing relationship. While it may assist a domestic partner’s defence that he/she honestly but mistakenly believed that his/her partner consented to the alleged sexual assault because he/she had consented before, it is simply not enough to say “I believed she consented because never has she not consented before.”
The accused-spouse must be able to provide the court with evidence of how and why that prior history logically informed his or her honest but mistaken belief in consent to the specific impugned sex act at the specific time that it occurred. The Court must also be satisfied that the accused-spouse took reasonable steps to ensure that his or her spouse was consenting to sexual activity.
Moreover, recent amendments to the Criminal Code create a specific legal procedure in advance of trial that must be followed to obtain approval to raise issues of previous sexual conduct in court.
The Supreme Court in R v Barton reaffirmed that an accused’s belief that their sexual partner’s prior sexual activities made it more likely that he or she was consenting to the sexual activity in question is a mistake of law.
In R v X.X. 2018 BCPC 393, the court found that the accused’s belief that his wife could consent to sexual touching, while she was asleep, was a mistake of law. In this case, the accused stated that sometimes, throughout the course of their marriage, both he and his wife would wake the other person up through sexual touching.
The Crown stressed its point in law: any prior consent that a person may have granted regarding any kind of sexual activity ceases once the person is unconscious. According to the crown, a sleeping person could not have provided lawful consent in advance. Consent requires a conscious, operating mind, capable of granting or withholding consent to sexual touching of any kind, each and every time. Here you can read about the Child Sexual Assault Case.
Even in the context of husband and wife, any continued sexual act perpetrated on the unaware person is a sexual assault. Although the husband truly believed, as a matter of fact, that the past conduct of his marriage could provide a lawful excuse, the court did not accept a defence of an honest but mistaken belief. The court determined that the idea that the complainant could consent in advance to his touching her sexually while she was sleeping, is not a mistake of fact, but a mistake of law. The court went on to explain that a mistake about the law or the legal significance of fact is not an excuse negating the criminal intent and affords no defence.
In a situation where it is commonplace for a pair of spouses to engage in rough sex with one another, a spouse can find himself or herself in legal turmoil for engaging in a similar kind of sexual activity, or even exactly the same kind of sexual activity, without obtaining explicit affirmative indication from their spouse, whether by way of a “yes” or other verbal cue or gesture
Remember, that the law does not necessarily fall in line with your common sense. Sometimes cultural or generational differences inform a person’s common-sense perspective, and that perspective is a mistake in law. Since consent is a question of law, not fact, make sure you do not rely only on your common sense to protect yourself from allegations of sexual assault. Inform yourself and, if facing allegations of sexual assault call one of our experienced criminal defence lawyers today.
