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| Patrick Ducharme |
Continued from part 1: Consent.
Section 273.1 of the Criminal Code elaborates on the meaning of consent. This definition applies to any form of assault including, sexual assault (271), sexual assault with a weapon, threats to a third party or causing bodily harm (272) and aggravated sexual assault (273).
Section 273.1 provides specifically the consent must be present at the time the sexual activity in question takes place. It provides that the question of whether no consent is obtained is a question of law. And, it specifically provides that no consent is obtained if any of the following circumstances apply:
a. the (alleged) agreement is expressed by the words or conduct of a person other than the complainant.
a.1 the complainant is unconscious.
b. the complainant is incapable of consenting to the activity for any reason other than the complainant is unconscious.
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;
Section 273.1 provides specifically the consent must be present at the time the sexual activity in question takes place. It provides that the question of whether no consent is obtained is a question of law. And it specifically provides that no consent is obtained if any of the following circumstances apply:
a. the (alleged) agreement is expressed by the words or conduct of a person other than the complainant.
a.1 the complainant is unconscious.
b. the complainant is incapable of consenting to the activity for any reason other than the complainant is unconscious.
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.
Further, nothing in section 273.1 can be construed as limiting the circumstances in which no consent is obtained. (273 .1 (3)). By elaborating on the meaning of consent section 273.1 supplements the definition of consent in section 265 for all the assault offences including sexual assault. In the result, there is no defence of implied consent to sexual assault.
The absence of consent is subject to, and must be determined by reference to, the complainant’s subjective internal state of mind towards the touching at the time that it occurred. A statement by the complainant that he or she did not consent therefore becomes a matter of credibility to be weighed considering all the evidence including any ambiguous conduct.
A Judge or jury therefore is entitled to accept the complainant’s testimony that she did not consent despite evidence of the complainant’s conduct that may appear to be contradictory to a claim that there was, in fact, no consent.
By elaborating on the meaning of consent section 273.1 supplements the definition of consent in section 265 for all the assault offences including sexual assault. In the result, there is no defence of implied consent to sexual assault.
The absence of consent is subject to, and must be determined by reference to, the complainant’s subjective internal state of mind towards the touching at the time that it occurred. A statement by the complainant that he or she did not consent therefore becomes a matter of credibility to be weighed considering all the evidence including any ambiguous conduct.
A Judge or jury is entitled to accept the complainant’s testimony that she did not consent despite evidence of the complainant’s conduct that may appear to be contradictory to a claim that there was, in fact, no consent.
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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