Relevant Sections of the Criminal Code

s. 273.(1)  Subject to subsection (2) and subsection 265(3) “consent” means, for the purposes of s. 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 any sexual assault case where,

  1. the agreement is expressed by the words or conduct of a person other than the complainant;
  2. the complainant is incapable of consenting to the activity;
  3. the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  4. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  5. 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 subsections (2) shall be construed as limiting the circumstances in which no consent is obtained.

s. 265. (3)  For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

  1. the application of force to the complainant or to a person other than the complainant;
  2. threats or fear of the application of force to the complainant or to a person other than the complainant;
  3. fraud; or
  4. the exercise of authority.

s. 265 is the section relating to the charge of assault. Sexual assault is simply a general assault of a sexual nature.

s. 265.(1) A person commits an assault when

  1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  2. he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
  3. while openly wearing or carrying a weapon or imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon …

s. 273.2 stipulates where the belief in consent not a defence.

273.2  It is not a defence to a charge under sections

  • 271 (sexual assault)
  • 272 (sexual assault with a weapon, use of threats or causing bodily harm)
  • 273 (aggravated sexual assault)

That the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

  1. the accused’s belief arose from the accused’s
    1. self-induced intoxication, or
    2. recklessness or willful blindness, or
  2. (the accused did not take reasonable steps, in the
    circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Consent is also not available as a defence where the complainant is under the age of 16. (with some exceptions dealing primarily with close proximity of age.)

The defence of mistaken belief as the age of the complainant is available in some instances and is contained in s. 150.1(4)

S. 150.1(4)  It is not a defence to a charge under section 151 (sexual interference), section 152 (invitation to sexual touching), s. 271, s. 272, or s. 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.