Consent – Section 265 Criminal Code

The most basic definition of consent is permission or agreement from one person to another person to have that other person do something that would otherwise be illegal. This general definition applies to all situations. Additionally, the law has special rules regarding sexual activity. Further, there are even more specific rules for young persons consenting to sexual activity.

In cases of sexual assault, the law states that a court decides what is consensual exclusively from the perspective of a victim. This means if a victim testifies that an act was not consensual and the court believes his/her evidence, the court will find that the act was not consensual. However, the accused person still has the defence of mistaken belief in consent available in a case like this.

The defence fails:

(a) Where it is gained by force applied to the person consenting or another person.

(b) Where it is gained by threats or fear of force being applied to the person consenting or another person.

(c) Where it is gained by fraud – an example of this would be a doctor lying and stating that it is necessary for a medical purpose when it is not.

(d) Where it is gained by the exercise of authority – a common example of this would be an employer in a position of authority abusing the relationship to for sexual gain.

Consent is given when someone voluntarily agrees to sexual activity. In order for it to be valid the person giving it must:

Be the person engaging in sexual activity. Another person cannot give it on a different person’s behalf. This means, for an example, that a pimp cannot agree on behalf of a prostitute.
The person must be able to consent. A person who is underage, not of sound mind, unconscious or incapacitated for any other reason cannot consent.
It cannot be as a result of an abuse of trust, power, or authority. A person cannot abuse any of these positions for the purpose of sexual gain.
It cannot be as a result of threats or fear for one’s safety. Even if no threats are made against a person, if the person agrees to sexual activity because s/he feels unsafe or fearful, the law does not consider this consensual.
Not have been given as a result of being tricked or deceived about a material fact. An example of this would be his/her partners HIV status.

The law states that a person cannot consent to an assault that causes bodily harm. However the law allows a person to consent to bodily harm in a sport if the bodily harm is the type that is normal for the particular sport. This means that a person can consent to black eyes and scrapes in a hockey fight because it is normal for that sport.

Nevertheless, if a person is involved in the same kind of fight in a non-contact sport like golf, s/he can be convicted of an assault. The law also states that a person could be found guilty of assault in a sporting context if the assault is for the purpose of causing an injury.

The law allows two people to agree to a consensual fight. However, if bodily harm is caused as a result of a consensual fight and bodily harm was intended, consent is no longer valid. Also if a person does not necessarily intend bodily harm, but does something that a person would know is likely to cause bodily harm this defence is not available.

The law recognizes that in functioning in a normal society a person may sometimes be touched without actual permission. An example of this would be a stranger tapping a person on the shoulder to ask for directions. Because of this, the law recognizes the idea of implied consent as a defence to minor assaults. The law however states that this cannot be a defence to sexual assault. Implied consent can be an important defence in domestic assaults. Additionally, this defence cannot be used if there is an injury as a result of the assault.

The age of consent in Canada is 16 years. There are two “close in age” exceptions. A person who is up to five years older can lawfully engage in sexual activity with someone who is 14 or 15 years old, and a person who is two years older can lawfully engage in sexual activity with someone who is 12 or 13 years old.

In some cases the court may rule that a person is not able to consent to sexual activity because s/he is too drunk. However, just because someone has had “a few too many” and is making poor decisions that s/he may later regret does not mean that the sexual activity that followed was non-consensual. Whether or not a drunk person is consenting is decided on a case by case basis. The law also states that just because a person can perform basic functions does not mean s/he had the ability to consent to sexual activity.

The law in Canada states that an unconscious person cannot consent to sexual activity. Nevertheless, the law assumes that a person who is unconscious and requires medical treatment gives implied consent to be treated. The law also does not allow a conscious person to consent to sexual activity that will take place when that same person is unconscious.

In certain cases courts can find that a person with a disability does not have capacity to consent. The law recognizes that some people with certain disabilities may consent to sexual activity. Whether or not a person with a disability has this capacity is determined on a case by case basis.

Lakin Afolabi is a criminal lawyer serving Southwestern Ontario who has assisted many clients charged with sexual assaults and other assaults escape a criminal record. If you or someone you know if charged with a criminal offence in Windsor, Kitchener, London or the surrounding area, he is available 24 hrs a day. Call him for a consultation.