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Clarifying the Blurry Lines on Consent Law in Ontario

The word “consent” has been thrown around a great deal in the news in the past few years. This blog will aim to give you a synopsis on the law of consent in Ontario.

Definition of Consent

Consent can be generally defined as permission given for something to happen or an agreement to the doing of a thing. In Ontario, when sexual activity takes place without consent, that act is characterized as “sexual assault”.

Sexual Assault Canada

Canada has a broad definition of sexual assault. This definition includes all unwelcome forms of sexual activity, such as unwanted sexual grabbing, kissing, fondling and rape.

Sexual activity is only legal in Canada when both parties consent to the particular activity. Consent is defined in Canada’s Criminal Code in s 273.1(1), as the voluntary agreement to engage in the sexual activity. The law focuses on what the individual was in actuality thinking and feeling at the time of the sexual activity. Sexual activity is only legal if the person affirmatively communicated their consent; this can be done through words or actions. For greater clarity, silence or passivity cannot equal consent under Canadian law.

In short, Consent = Legal Sexual Activity.

When there is No Consent

According to the Criminal Code, there is no consent when:

  • A person says or does something that demonstrates that they are not consenting to a sexual activity
  • A person says or does something to demonstrate that they are not agreeing to continue a sexual activity that has already begun
  • A person is incapable of consenting to the sexual activity for various reasons including but not limited to intoxication or under the influence of drugs
    the consent that has been given is a result of a someone abusing a position of trust, power or authority (i.e.: teacher, doctor or police officer) or
    a person consents on someone else’s behalf.

Oftentimes, the person accused of engaging in non-consensual activity may state that they mistakenly believed the other party was consenting. Under the Criminal Code, a person cannot say they mistakenly believed a person was consenting if:

  • that belief is based on their own intoxication or influence under drugs
  • they were reckless or wilfully blind about whether the person was consenting
  • they deliberately chose to ignore signs, words or conduct that illustrated that there was a lack of consent or
  • they did not take proper steps to check if there was consent; the test here is a reasonably objective person.

Helpful Notes on the Law of Consent:

  • The person initiating sexual activity has the responsibility to ensure there is consent
  • When a person says no to continual sexual activity, the other person must understand consent has been withdrawn
  • Consent can be revoked at any point in time even if it was initially granted
  • It is not possible to rely on consent that was given in advance of sexual activity
  • No one can consent to sexual activity that results in bodily harm
  • The age of consent for sexual activity is 16 years of age
  • There are exceptions for sexual relationships for persons who are close in age and under the age of consent
  • Persons in the position of a relationship of trust, authority or dependency have a higher responsibility not to exploit said position

The Supreme Court of Canada holds that consent laws cannot apply based on someone’s past behaviour or pattern of behaviour. In other words, someone’s sexual history cannot be relied upon to determine that person likely consented to the sexual activity. Sexual assaults can take place even in the context of a marriage.

The Aitken Robertson Team

If you have been charged with sexual assault, contact our office for a free 30-minute consultation. Our experienced criminal defence lawyers understand the law in this area and will go to work for you in advancing all defences available in your case.

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