Canada’s Law of Consent in Sexual Assault

In Canada, sexual activity is only legal when both the parties consent. Canada has a broad definition of sexual assault, and all unwanted sexual activities fall under it. For example, unwanted groping, fondling, kissing and rape are all considered to be forms of sexual assault.

Under s. 273.1(1) of Canada’s Criminal Code, there has to be a voluntary agreement between both the parties engaging in a sexual activity. If any party is not willingly consenting, it is a sexual assault. There are certain conditions in which a person is considered to be non-consenting by default, such as:

• The person is unconsciousness;
• The person shows signs of non-consensual behavior i.e. doing or saying something to avoid a sexual activity;
• The person is only consenting because the other person is abusing a position of trust, power or authority;
• Another person is consenting on the person’s behalf; or
• The person shows signs of non-agreement after the sexual activity has already started.

The law also considers silence or passivity as a sign of non-agreement. A person who is initiating a sexual activity has to ensure that the other person is consenting by their words or conduct. It is their responsibility to be clear about the other person’s intention. They cannot say that they mistakenly believed the person was consenting if:

• They choose to be reckless about the other person’s consent;
• Their belief arose from self-induced intoxication at the time of sexual assault;
• If they ignored signs of non-consent (i.e. wilful blindness); or
• They did not take reasonable steps in the circumstances to ascertain that the complainant was consenting.

If a person says no to sexual contact, but the other person is still engaging in it, the aggressor cannot rely on the fact that the time has passed, and the partner may be consenting now. If the person said no for the first time, then sexual activity should not start in the first place.

A person cannot consent for a sexual activity in future when they will be unconscious. Moreover, no one can legally consent to an activity in which their body will be harmed. Any activity that can cause serious bruises, bleeding or broken bones cannot be subject to consent.

For young people, the legal age of consent is 16 years old, but in cases of prostitution, pornography or sexual relationships with people in authority (teacher, babysitter, coach, etc.) the legal age of consent is 18 years.

A person who is as young as 14 years can legally consent to sexual activity with someone who is not more than five years older, so long as this person is not in a position of trust, power, authority or a relationship of exploitation over the other. 12 and 13-year-olds can also consent to sexual activity with one another.

Can a Criminal Lawyer Help with a Sexual Assault Charge?

The goal of the criminal lawyers at Kruse Law is to build a successful defence for those who are falsely accused of sexual assault. If you are arrested for sexual assault, there are several legal options still available to you. For example, your criminal defence lawyer can raise reasonable doubt that your accuser gave consent. In some cases, your criminal defence lawyer can also show the court that you genuinely believed that the complainant gave consent.

If you have been charged with sexual assault in Ontario, contact the criminal defence lawyers at Kruse Law to learn how we can help you overturn a sexual assault charge. Call us toll-free at +1-800-699-0806 or fill out our online case form for a free legal evaluation of your case or send an email to defence@kruselaw.ca.