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| Patrick J Ducharme |
It is the Crown’s responsibility to prove beyond a reasonable doubt that the person complaining of having been assaulted did not consent to the conduct that forms the basis of the alleged assault.
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.
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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