HOW IS CONSENT DEFINED IN SEXUAL ASSAULT CASES?
In many sexual assault cases there is no physical evidence and no witnesses other than the complainant and the accused, creating a he-said-she-said scenario. In these situations, the main issue at trial often becomes consent. The complainant will state that they did not consent to the sexual activity and the accused will argue that there was consent and thus no crime was committed.
The law relating to consent in Canada has evolved over the years. In 1992, the Canadian government introduced “Rape Shield Laws” which prohibited the sexual history of a complainant from being introduced into evidence to show that they were unreliable or were more likely to have consented to the sexual activity. This rape shield law is outlined in section 276 of the Criminal Code which is discussed more in detail below.
As outlined in section 273.1(2) of the Criminal Code, no consent can be obtained where;
- the complainant is unconscious;
- where the complainant is incapable of consenting for any reason other than because they are unconscious;
- the accused induces the complainant to engage in the sexual activity by abusing their position of trust, authority or power;
- the complainant expresses, through their actions or words, a lack of consent in the sexual activity; or
- the complainant, having originally consented to the sexual conduct, expresses, through their actions or words their lack of agreement to continue the sexual activity.
Every individual who wishes to engage in sexual activity with another person must take reasonable steps to ascertain whether or not consent exists and consent must be ongoing.
In 2019, the Supreme Court of Canada released their decision in R v Barton which dealt in part with s. 276 and whether or not it was proper for the defence to introduce evidence that the victim had consented to a certain sexual act with the defendant in the past and was thus more likely to have consented to it during the alleged incident. In R v Barton, a sex worker who had been hired by a man for two nights was killed during a rough sex act on the second night. The defence introduced evidence at trial that Mr. Barton had engaged in the same rough sex act with the victim the night prior to her death and that she had participated willingly. This evidence was used to ultimately acquit Mr. Barton of the charges against him.
Upon appeal to the Supreme Court, the Court determined that it was improper for the jury to have heard evidence of the victim’s prior sexual history as evidence that she had consented to the activity on the night of her death. Introducing such evidence without having a judge first rule on its admissibility is prohibited by section 276 of the Criminal Code. As a result, the Supreme Court remanded the case back to the trial court for a new trial. Section 276 of the Criminal Code is discussed in more detail below.
Global News: Historical Sexual Assault Charges and Bill Cosby.
Frequently Asked Questions
What is the Age of Consent in Canada?
The age of consent is the age at which Canadian’s can legally make the decision to engage in sexual conduct. The age of consent only becomes relevant in sexual relationships when one member of the couple is under the age of 18 years old. In Canada, the age of consent is 16 years old. This means that an individual must be 16 years old to legally consent to sexual activity of any kind. The age of consent is raised to 18 years old if one member of the couple holds a position of trust, authority, dependency or any other exploitation over the young person.
There are “close in age” exceptions for individuals under the age of 16 who are close in age who wish to engage in sexual activity. A 14 or 15-year-old may consent to sexual activity as long as their partner is less than five years older than them and there is no position of trust, authority, dependency and there is no other exploitation involved. Additionally, a 12 or 13-year-old may consent to sexual activity as long as their partner is less than two years older than them and holds no position of trust, authority, dependency and there is no other exploitation involved.
An adult individual who engages in sexual activity with an individual who has not yet reached the age of consent is guilty of the offence of sexual interference. Even if the young person agrees to engage in the sexual activity, a crime has been committed because the young person is legally incapable of consenting. Section 151 of the Criminal Code states that every person who, for a sexual purpose, touches, directly or indirectly, with a part of their body or an object, any part of the body of a person under the age of 16 years is guilty of the offence of sexual interference.
Depending on the severity of the alleged offence, the Crown may choose to proceed summarily or by indictment. If the Crown proceeds summarily the defendant will be liable to imprisonment for a minimum of 90 days and a maximum of two years less a day. If the Crown chooses to proceed by indictment the defendant will be liable to imprisonment for a minimum of one year and maximum of 14 years.
What is Rape Shield Law?
Section 276 of the Criminal Code states that evidence of the complainants past sexual history may not be introduced into evidence at trial for a sexually based offence if it is being introduced to show that the complainant was more likely to have consented to the sexual activity that is the basis of the trial or is less worthy of belief in the current proceeding. This section of the Criminal Code is often called the rape shield law.
Though evidence of the complainants past sexual history is generally inadmissible, it may be admissible in certain situations. The defence may be permitted to introduce evidence of the complainants past sexual history where it is not being adduced for the purpose of suggesting that the complainant was more likely to have consented to the sexual activity, where it relates to an issue in the case, is of a specific sexual activity and has significant probative value.
Prior to trial the defence must submit a s. 276 application to the Court requesting permission to introduce evidence of the complainants past sexual history. This application will be reviewed by the Court and if it is deemed to meet the standards as outlined above it will be admitted into evidence. It will not be admitted into evidence under any circumstances to suggest that the complainant was more likely to consent to the sexual activity the forms the alleged sexual assault or to suggest the that complainant is less worthy of belief.
In determining whether to grant the s. 276 application, the judge must consider several factors as outlined in the Criminal Code. These factors include;
- the interests of justice, including the right of the accused to make a full answer and defence;
- societies interest in encouraging the reporting of sexual assault offences;
- whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
- the need to remove from the fact-finding process any discriminatory belief or bias;
- the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
- the potential prejudice to the complainant’s personal dignity and right of privacy;
- the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
- any other factor the judge, provincial court judge or justice considers relevant.
What is Mistaken Belief in Consent?
The defence of honest but mistaken belief in consent is a defence used in sexual assault cases where the main issue at trial is consent. The defence argues that the accused had an honest but mistaken belief that the complainant was consenting to the sexual activity and thus lacked the intent necessary to be convicted of sexual assault.
Honest but mistaken belief in consent will not be accepted as a valid defence to a charge of sexual assault where the accused has willingly taken drugs and/or alcohol that has affected their ability to think and reason, where the accused has intentionally ignored signs that indicate that the other person is not consenting, and where the accused has a reckless attitude about whether the other person is consenting.
In 2019, the Supreme Court of Canada released their decision in the R v Barton case, which further clarified the parameters of the honest but mistaken belief in consent defence. The Court stated that the defence must be properly characterized as the honest but mistaken belief in communicated consent. The Court clarified that implied consent is not enough under Canadian law, and the individual must communicate consent to the sexual activity. Thus, a defendant may not argue that they believed the complainant was consenting where the complainant never communicated consent. It is an error in law to assume that an individual was consenting to sexual activity up until the point that they verbally said “no” or physically resisted.
If a defendant wishes to raise the defence of honest but mistaken belief in consent, they must testify at trial and explain to the Court why they believed consent existed at the time the sexual activity occurred. They must outline the reasonable steps they took to ascertain whether consent existed and outline what would not be considered reasonable. The Court stated that an individual may not “test the waters” by touching another individual to gauge their interest in the sexual activity. An individual may not rely on another individual’s passivity, silence or ambiguous conduct or statements as consent to sexual activity. The Court also noted that the more invasive the sexual activity is, the greater care individuals must take in ascertaining whether consent exists.
The defence of mistaken belief in consent is a narrow defence that will only be successful in rare situations. If you have been charged with a sexual assault and believed that the complainant was consenting at the time of the sexual activity, our Firm can assist in formulating the best defence based on the facts of your particular case.