A Definition of Consent to Sexual Activity

Section 273.1 provides a definition of consent for the purposes of the sexual assault offences and for greater certainty, sets out specific situations that do not constitute consent at law.

Subsection 273.1(1) defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.

For greater certainty, subsection 273.1(2) sets out specific situations where there is no consent in law; no consent is obtained:

  • where the agreement is expressed by the words or conduct of a person other than the complainant
  • where the complainant is incapable of consenting to the activity
  • where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
  • where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
  • where 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.

Restricting The Defence Of Honest Belief In Consent

Section 273.2 limits the scope of the defence of honest belief in consent to sexual activity by providing that the defence is not available where the accused's belief arose from the accused's self-induced intoxication, or where the accused's belief arose from the accused's recklessness or willful blindness or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting.

Sections 276 to 276.5 of the Criminal Code govern the admission of evidence regarding a sexual assault complainant's other sexual activity. The Code makes it clear that evidence that a complainant has engaged in sexual activity is not admissible to suggest that the victim was more likely to have consented to the sexual activity which is the subject matter of the charge or that he/she is less worthy of belief. The provisions restrict the admissibility of evidence to specific instances of sexual activity, relevant to an issue at trial and to evidence which has "significant probative value which is not substantially outweighed by the danger of prejudice to the administration of justice". The judge is required to consider a range of factors set out in the Code in making this determination. The Code also sets out the procedure to be followed and includes provisions to safeguard the victim's privacy including provisions for an in camera(closed) hearing, non-compellability of the victim and a publication ban on the proceedings. These provisions are sometimes referred to as the "rape shield" laws.

Protecting the Personal Records of Sexual Offence Victims

Sections 278.1-278.9 of the Code govern the production of personal records about victims and witnesses in sexual offence proceedings. The provisions place the onus on the accused to establish that the records sought are likely relevant to an issue at trial and require the trial judge to carefully scrutinize applications and determine production in accordance with a two-part process involving a consideration of both the accused's rights to full answer and defence and the victim's rights to privacy and equality. The procedure to be followed is also set out in the Code and includes safeguards for the victim's privacy including an in camera (closed) hearing, non-compellability of the victim at the hearing, a publication ban on the proceedings and the contents of the application, editing of the records (where ordered to be produced) to delete irrelevant personal information and the imposition of other appropriate conditions on production.

Other Code Provisions of Interest to and Benefit for Victims of Crime

  • Section 161 - permits the court to make an order prohibiting an offender convicted of a sexual offence involving a young person (under 14) from attending at or near certain public places where children may be present or seeking, obtaining or continuing employment that involves being in a position of trust or authority towards a young person.
  • Section 810.1 - allows a person to seek a peace bond, lasting up to 12 months, if he or she fears that another person will commit a sexual offence against a child. A hearing may be held and the judge will determine whether a peace bond (referred to as a recognizance) should be entered into. If the defendant fails or refuses to enter into the recognizance, the judge may sentence the defendant to jail for up to 12 months.
  • Section 264 - provides for the offence of criminal harassment (stalking). It is an offence to engage in harassing conduct, including repeatedly following a person, watching a dwelling house or place where the other person lives or carries on business or happens to be or engaging in threatening conduct knowing that this causes the person to reasonably fear for their safety or the safety of anyone know to them.
  • Section 718 - sets out the purpose of sentencing. It provides,

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: …

  • (e) to provide reparations for harm done to victims or to the community; and
  • (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
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