Consent to Sexual Activity


A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. 

The Actus Reus of Sexual Assault
To establish the actus reus of sexual assault, the Crown must prove three elements:
(i)           touching;
(ii)         the sexual nature of the contact; and
(iii)        the absence of consent. 
See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para. 25.
                                                                             
The Mens Rea of Sexual Assault
A person has the required mental state, or mens rea of the offence, when he or she
(i)           knew that the complainant was not consenting to the sexual act in question, or
(ii)         was reckless or wilfully blind to the absence of consent. 

The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity.  However, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence. 
Sexual acts performed without consent and without an honest belief in consent constitute the crime of sexual assault.

CONSENT DEFINED
Consent is defined in section 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

 “sexual activity in question”
In section 273.1(1) “sexual activity in question” refers to the physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys).
R . v. Hutchinson, [2014] 1 SCR 346, 2014 SCC 19 (CanLII), at para 54.
The complainant must agree to the specific physical sex act. For example, agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching. 
Ibid.
The “sexual activity in question” does not include conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases. 
Hutchinson, at para 55.

Identity of an individual’s sexual partner is an inseparable component of consent to sexual activity
The “sexual activity in question” also encompasses the identity of the partner. Where the complainant’s consent to sexual activity depends on it being with a particular person, her/his mistake about the identity of that person whether induced by fraud or not, necessarily means that subjectively she/he did not voluntarily agree to the sexual activity that occurred with someone else.
R. v. G.C., 2010 ONCA 451 (CanLII), at para 24, leave to appeal refused, [2010] 3 S.C.R., where the Court of Appeal for Ontario held that the complainant’s mistaken belief that the partner was her boyfriend when it was in fact his identical twin resulted in no consent to the “sexual activity in question” under s. 273.1 of the Criminal Code; see also R. v. Alboukhari, 2013 ONCA 581.

Relevant time for consent
The only relevant period of time for the complainant’s consent is while the touching is occurring:  Ewanchuk, at para. 26. 
The complainant’s views towards the touching before or after are not directly relevant.  An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent).  Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

The ongoing conscious consent of an operating mind
Consent means the conscious consent of an operating mind throughout every phase of the sexual activity.  Therefore, any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.
R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para 36.
Clearly then, an individual must be conscious throughout the sexual activity in order to provide the requisite consent. 
Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. 
R. v. J.A., at para 3.

Specific circumstances where consent to an assault is statutorily vitiated
Section 265(3), which is applicable to all forms of assault, sets out circumstances in which consent is not obtained:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

Consent obtained by deception
While not every deception that induces consent should be criminalized, where a complainant has chosen not to become pregnant, deceptions that expose her to an increased risk of becoming pregnant may constitute a sufficiently serious deprivation to vitiate consent under section 265(3)(c) [fraud].
Hutchinson, at paras 70-74: the accused’s condom sabotage constituted fraud within section 265(3)(c), with the result that no consent was obtained.


Circumstances in which the defence of consent cannot be raised
Section 273.1(2) provides a non-exclusive list of circumstances in which the defence of consent to sexual assault cannot be raised:
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.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(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 agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained

Differences between the meaning of the consent in the actus reus and consent under the mens rea
It is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea.
Ewanchuk, at paras. 48-49.

Consent under the actus reus

The only question regarding consent viz-a-viz the actus reus is whether the complainant subjectively consented in her mind to the sexual activity in question at the time the activity occurred.,
Ewanchuk; R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3; R. v. J.A., at para 41: the Supreme Court of Canada made clear that the absence of consent must be assessed only on the basis of the complainant’s subjective state of mind towards the sexual activity in question and that assessment must be as of the time the activity occurred.
The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established. 

Consent under the mens rea

Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent. 
R. v. J.A., at paras 37, 45-8.
Section 273.2(b) states that a person wishing to avail himself of the mens rea defence must not only believe that the complainant communicated her consent (s. 273.2)), but must also have taken reasonable steps to ascertain whether she “was consenting” to engage in the sexual activity in question at the time it occurred. 

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