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| Patrick Ducharme |
Although another person’s consent to any act or activity may, in some instances, amount to a defence based upon his consent, there are many instances where our law has either determined or statutorily barred the defence of consent. Generally, we think of consent as either a noun or a verb. As a noun we consider it as a prior approval or permission or agreement. As a verb we think of consent as the acts or words of another providing us with permission or agreement to do something.
Consent can be expressed or implied. There can be problems with either form of consent. When expressed it may not be expressed clearly or cogently. Implied consent may be susceptible to mistaken impression or mistaken parameters. For these reasons the defence of consent is often described by experienced trial lawyers as the reverse of a Latin proverb that when translated means, “our fears always outnumber our dangers.” In this area of the law, we suspect the dangers outnumber our fears.
The defence of consent should alert defence lawyers to the myriad problems it may present. The defence of consent must be used carefully, with full appreciation of its inherent weaknesses and myriad nuances. There is no need to fear its use, but there is a need to examine all aspects of the circumstances giving rise to the defence of consent.
The defence of consent is rarely settled by evidence of a clear and cogent written agreement. Instead, it is often based on one’s interpretation of another’s actions, such as offering little or no resistance, interpreting someone’s words a certain way when those words are subject to different interpretations.
The defence of consent, particularly when it is not expressly stated, but implied, requires a careful consideration of all the circumstances. One important circumstance to be considered is the relationship between the accused and the person who allegedly consented to the activity that now forms the basis of a criminal charge.
One of the two people may be viewed as vulnerable based upon status, rank, or position of authority or influence. An accused, for example, who enjoys a position of authority may think that a woman in his employ, who is under his authority, consented to a sexual act.
The employee under the accused’s authority may testify that she was attempting to preserve her job when sexual advances were made by her boss. She may testify that she did not scream or yell or complain now of an unwanted sexual act, but later, perhaps even much later, and, on painstaking reflection, felt obligated to report what she knew at the time, and therefore, has now, even much later, accepts or understands that what occurred was a criminal offence perpetrated on her against her will.
Especially today, years after the inception of what has come to be known as the ‘#me too movement’ anyone wishing to utilize the defence of consent should be forewarned that the consent should be clear, unambiguous, provable and hopefully supported by other independent evidence. Otherwise, it is a defence fraught with danger, especially in cases dependent upon the evidence of the complainant and the accused alone.
And it’s not just in sexual assault allegations that the defence of consent may be difficult. The charge of assault presents another good example of the reduced viability of consent as a legitimate defence.
Section 265 of the Criminal Code provides that a person commits an assault when without the consent of another person he applies force intentionally to that other person, directly or indirectly. This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
The section also provides that 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.
The section also provides that where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a Judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
The first hurdle for the accused arguing consent as a defence is that the Judge must be satisfied that there is sufficient evidence of consent to have the jury consider it. Then, the jury is to determine the honesty of the accused’s belief in consent.
Continued in part 2: Section 273.1 of the Criminal Code
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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