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:

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

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: …