Accused of a Sexual Assault: What Does Consent Mean?
If you have been accused of sexual assault, you may believe the other person agreed to what happened. You may remember their words or actions differently from how they describe them.
In many sexual-assault cases, consent is the main issue. Canadian law has a specific meaning for consent. It may be different from how people use the word in everyday life.
Being accused or charged does not mean you are guilty. The Crown must prove the charge beyond a reasonable doubt. This article gives general information and is not legal advice.
What Is Consent?
Under Canadian law, consent means that a person freely agrees to take part in a specific sexual activity.
Consent must be:
voluntary;
given by the person taking part;
connected to the specific activity;
present when the activity happens; and
ongoing throughout the activity.
A person can agree to one activity but not another. Agreeing to kissing, for example, does not automatically mean agreeing to further sexual contact.
Consent on a previous occasion also does not mean consent exists now. Being married, dating or having a past sexual relationship does not create automatic consent.
Consent Must Be Communicated
You cannot assume consent because the other person did not say “no.”
Silence, lack of resistance or passive behaviour does not automatically mean agreement. A person does not have to fight back, leave or clearly object for a court to find that they did not consent.
Consent can be communicated through words or actions. However, there must be something that shows the person actively agreed.
The court may look at:
what each person said;
what each person did;
how the activity started;
whether the activity changed;
whether anyone showed hesitation; and
whether you stopped to check when the situation was unclear.
Consent Can Be Withdrawn
A person can change their mind at any time.
Even if someone agreed at the beginning, they can later say or show that they want the activity to stop. Once consent is withdrawn, the activity must stop.
Saying that the person agreed earlier may not be a defence if the allegation is that they later withdrew consent.
Actual Consent and Belief in Consent
There are two different questions a court may consider.
The first is whether the complainant actually agreed.
The second is whether you honestly believed that the complainant communicated agreement.
These are not the same issue.
A claim that you believed there was consent must be based on something the other person said or did. It cannot be based only on your own assumptions.
For example, it is not enough to say:
“They did not stop me.”
“They came home with me.”
“We had done this before.”
“They seemed interested.”
“They never clearly said no.”
These facts may be part of the evidence, but they do not automatically prove consent.
You Must Take Reasonable Steps
Canadian law may require you to take reasonable steps to make sure the other person is consenting.
What is reasonable depends on the situation. There is no single rule for every encounter.
You may need to stop and clearly check when:
the person seems unsure;
their words and actions do not match;
they previously refused;
the activity changes;
they appear very intoxicated;
they stop responding; or
there is another reason to question whether they agree.
A person cannot simply ignore warning signs and later say they assumed there was consent.
Alcohol and Drugs
Alcohol or drug use can make consent more complicated.
A person does not automatically lose the ability to consent because they have been drinking. However, a person who is unconscious cannot consent. A person may also be too impaired to understand what is happening or make a voluntary decision.
The court may consider how aware and responsive the person was and whether they could make and communicate a choice.
Your own intoxication does not prove that the other person consented. Canadian law generally does not allow you to rely on a mistaken belief in consent if that belief came from your own intoxication.
Recklessness and Ignoring the Risk
A mistaken belief in consent may not be available if you were reckless or deliberately ignored the situation.
Recklessness can mean that you noticed a real risk that the person was not consenting but continued anyway.
Wilful blindness can mean that you avoided asking or checking because you did not want to know the answer.
The law does not allow a person to rely on consent when they ignored clear uncertainty or warning signs.
Consent Must Be Specific
Consent is not a general or unlimited agreement.
A person may agree to one act and not another. They may also place conditions on what they agree to.
The court focuses on the exact activity that led to the charge. It may also look closely at the timing of the activity and whether agreement was communicated at that point.
Broad statements such as “the whole encounter was consensual” may not fully answer the legal question. Your lawyer will need to understand what happened at each stage.
Relationships Do Not Create Automatic Consent
A person must consent each time sexual activity happens.
Consent cannot be assumed because:
you were dating;
you were married;
you had sexual contact before;
the person had previously shown interest; or
the person agreed to similar activity in the past.
Canadian law also limits how evidence about a complainant’s sexual history can be used. It cannot be used to argue that the person was more likely to consent or was less believable.
Trust, Power and Authority
Consent may not be legally valid if someone agreed because another person abused a position of trust or power.
This may apply to relationships involving:
teachers;
coaches;
employers;
caregivers;
supervisors; or
other people with authority.
The court may consider whether the person made a free choice or felt pressured because of the power difference.
Age of Consent
The general age of consent in Canada is 16.
There are limited close-in-age exceptions for some younger teenagers. These exceptions do not apply in every situation, especially where there is trust, authority, dependency or exploitation.
Believing that someone was old enough is not always a defence. The law requires proof that reasonable steps were taken to confirm the person’s age.
Cases involving a young person are legally complex and require advice from a criminal-defence lawyer.
How a Court Looks at Consent
At trial, the Crown must prove the charge beyond a reasonable doubt.
Evidence about consent may include:
the complainant’s account;
your account, if you testify;
text messages and social-media messages;
photographs or videos;
witness statements;
phone or location records; and
statements made before or after the event.
The court looks at all the evidence. The issue is not simply which person seems more believable overall. The final question is whether the Crown has proven every part of the charge beyond a reasonable doubt.
Preparing to Speak With A Lawyer
Give your lawyer a full and accurate account of what happened.
Do not only say that the activity was consensual. Explain:
what the other person said;
what they did;
what you said and did;
how each activity began;
whether anything changed;
whether the person hesitated or stopped responding; and
what you did to check that they agreed.
It can be helpful to save any relevant messages, photographs, call records or other information relevant to the charge. It is important that you do not delete or edit these records.
You will likely have been released by Police with documents that order you to have no contact with the complainant. Do not contact the complainant if you have been ordered not to. Do not ask someone else to contact them for you. You should also avoid discussing the case publicly or posting about it online until you have met with a Lawyer.
Conclusion
Under Canadian law, consent means a voluntary and ongoing agreement to a specific sexual activity.
Consent cannot be assumed from silence, a lack of resistance, a past relationship or previous sexual activity. A person can change their mind at any time. Where the situation is unclear, the law may require reasonable steps to confirm that the person agrees.
Being accused does not mean you are guilty. However, consent law is detailed and depends heavily on the facts. A criminal-defence lawyer can explain how the law applies to your case and the evidence against you.
