Dec 13, 2022
The law of sexual assault in Canada can be surprising. If you polled members of the public about whether certain scenarios amount to sexual assault, many would wrongly guess that something that isn’t sexual assault is, or vice-versa. Here are five laws of sexual assault and consent law in Canada you should know.
Five Consent Laws In Canada
1. Consent must be continuous throughout the sexual activity
At first glance, this doesn’t seem like a surprising fact about the law of sexual assault. If someone consents to sex with another person, then revokes it partway through, the other person must stop having sex with them. Otherwise, the other person has committed a sexual assault. None of this is counterintuitive.
However, what if someone were to give advanced consent to having sexual acts performed on them while they’re unconscious? They could even have a particular sexual fantasy about having sex acts performed on them while sleeping, or about being woken up by a sex act.
It turns out that Canadian law still says that’s sexual assault. It’s simply illegal to perform a sexual act on someone who is in a state where they can’t consent to sex, like being unconscious. There are no exceptions, not even if someone gives their sexual partner consent in advance.
2. Apparent consent is not necessarily actual consent
Canadian law says that in certain circumstances, a person can seem to consent to sex, but their consent wasn’t true consent. In such cases, the seemingly consensual sex was actually a sexual assault.
One example of this is if someone is in a position of authority and uses it to induce another person into consenting to have sex with them. The person in a position of authority doesn’t need to coerce the person below them. It’s enough if they use their position of authority to induce the person below them to consent to sex with them.
Another example of this is if someone has unprotected sex with another person without disclosing to them that they’re HIV positive. Assuming the other person wouldn’t have consented to sex if they had known about their sex partner’s HIV positive status, the HIV positive person is guilty of a sexual assault. The law says that the HIV positive person obtained the other person’s consent by fraud, and therefore the other person never truly consented to sex with them.
The example above might raise concerns about what amounts to fraudulently obtaining consent to sex. The law doesn’t say that a person obtains consent to sex fraudulently because, for example, they lied about their age, income, or sexual history, and had sex partner known the truth they never would have consented to sex with them. The fraud must have put the victim’s health at serious risk or related to the central character of the sex.
3. Consent occurs entirely in a person’s mind
Canadian law says that consent is entirely a matter of what someone was thinking at the time. If they thought “I don’t want to do this”, then they were not consenting to sex, even if they said out loud “this is great, let’s keep going”.
This might seem scary. It suggests that someone could theoretically be accused of sexual assault because their sex partner didn’t want to have sex with them, even though they said the opposite at the time. However, in such a case the person accused of sexual assault would have a defence of honest belief in consent.
Honest belief in consent means that if an accused honestly believed their sex partner was consenting and took reasonable steps at the time to find out if their sex partner was consenting, then they’re not guilty of sexual assault.
4. A drunken consent is still consent
There are some people who agree with the message “if you’re too drunk to drive, you’re too drunk to consent to sex”. This is not the law in Canada, but there is a level of intoxication where a person loses the capacity to consent.
The degree of intoxication required to no longer be legally allowed to drive is not high. In British Columbia, this is only 0.05 mg alcohol in 100 ml of blood. Most people will have blood alcohol levels above that number if they consume three standard drinks within an hour or two.
Having a few standard drinks will certainly be enough to impair someone while driving, but it will not be enough that the law says they can no longer consent to having sex with another person.
A person will be guilty of sexual assault if they have sex with someone so intoxicated that they no longer have the capacity to consent. To reach that level, there should be signs that the intoxication is very high. Examples of the kind of evidence that would support a person’s incapacity to have sex includes vomiting, difficulty standing up, slurred speech, slouching, sleepiness, stumbling, and confusion.
5. No one can bring up a sexual assault complainant’s sexual history at trial
As a starting point, neither the Crown prosecutor nor the defence lawyer is permitted to bring up any sexual history of a sex assault complainant, unless they get permission from the judge first. This might not seem surprising because a sexual assault complainant wouldn’t want their privacy invaded by the trial process, but this rule has a few surprising elements to it.
First, the rule applies both to the defence and the prosecutor. Even though the prosecutor is the one attempting to obtain justice for the complainant, they’re not allowed to bring up a complainant’s sexual history as part of their case. They need permission from the judge first, just like the defence does.
Second, the rule applies to all sexual history, even if the complainant and accused have been married for 40 years and have had many children together. By default, the jury is not allowed to hear about the married couple’s sexual history at all.
Third, there is no parallel rule protecting the privacy of the accused. The Crown can cross-examine them as much as they want on their sexual history, without limit, subject to the usual rules of evidence (e.g., relevance, self-incrimination, etc.).
Fourth, the rule applies to all sexual communication. This means that in a case where an accused and complainant were texting each other sexual things before the incident (e.g., the complainant messaged the accused “I can’t wait to f*** you tonight”), those communications are not admissible in court unless the judge allows it.
Fifth, in the vast majority of cases the judge doesn’t allow the prior sexual history of the complainant to be admitted at trial. The legal test for allowing this kind of evidence to be admitted is high and difficult to overcome for the defence. Even in a case where an accused is alleged to have sexually assaulted a complainant during BDSM, the accused and the complainant’s prior history of engaging in BDSM together is presumptively inadmissible. This could distort the jury’s view of the case because they might hear that an alleged sexual assault occurred in the context of BDSM without knowing the accused and complainant had previously engaged in consensual BDSM. Without that knowledge a jury would be much more inclined to think the accused is guilty because it would be strange to imagine a complainant agreeing to BDSM the very first time they had sex with someone else.
Finally, the rule exists not only to protect the privacy of the complainant, but to guard against the “twin myths” of sexual assault. These myths are that a woman is more likely to have consented to sex because of their sexual history, or that because of their sexual history they’re less worthy of being believed. Canadian law does not trust juries with the twin myths of sexual assault. Instead of judges warning juries not to think badly about the case, they prevent juries from hearing any of the evidence at all.
If you have any more questions surrounding sexual assault or consent law in Canada, call Filkow Law today.
Sexual Assault Law in the Supreme Court – R v. GF
What role does alcohol play in assessing consent? The Supreme Court of Canada (SCC) recently explored this issue in R v GF.
In R v GF, 2021 SCC 20, the SCC considered the relationship between consent and the capacity to consent to sexual activity. Ultimately, the SCC ruled that the capacity to consent to sexual activity and actual consent do not need to be compartmentalized. Capacity is simply a precondition of consent.
The Facts in R v GF
The accused couple (G.F. and R.B.) was found guilty of sexually assaulting C.R. while on a camping trip. On the final night, C.R.’s mother arranged to have C.R. sleep in the accused couple’s trailer. That night that the two accused and C.R. engaged in sexual activity.
All parties agreed that the sexual activity happened. However, they disagreed on whether C.R. consented to it. C.R. said she drank around 8 to 10 shots and did not consent. G.F. said C.R. had a beer and two half-ounce shots and did consent.
The trial judge believed C.R. and disbelieved G.F. He found that the sexual activity occurred while she was too drunk to consent and that she did not consent.
The Court of Appeal’s Response
The Court of Appeal ordered a new trial because the trial judge erred on two grounds:
- He did not explain why he found C.R. was too drunk to give consent; and
- He should have considered the issue of consent separately from the issue of capacity.
In his decision, the trial judge concluded:
 Section 273.1(2)(b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to the activity. This applies in instances where a complainant is intoxicated.
 Accordingly, I find the two accused guilty of sexual assault as charged.
Because the trial judge did not assess at what point C.R. would have been too drunk to give consent, the Court of Appeal found he misleadingly suggested that any level of intoxication is enough to negate consent.
The Court of Appeal also held that the consent and capacity analysis should be separate. Thus, the trial judge should have first asked whether C.R. consented to the sexual activity, then asked whether her level of intoxication invalidated the consent.
The Supreme Court of Canada Finds Capacity is a Precondition to Consent
Karakatsanis J., for the majority of the SCC, overturned the Court of Appeal and reinstated the convictions. While the Court of Appeal looked at alcohol and incapacity as factors that render consent ineffective, the SCC rejected the idea that a person can consent but have his or her consent be ineffective due to alcohol or incapacity. As a matter of logic, a person must be capable of consenting to provide consent.
The SCC outlined a four-part test for when a person is capable of consent. The person must be capable of understanding all of the following:
- the physical act;
- the sexual nature of the act;
- the identity of the sexual partner(s); and
- that he or she may refuse to participate.
If the Crown proves the person was incapable of understanding any one of the above beyond a reasonable doubt, the complainant is incapable of consent, and therefore did not consent.
On the issue of the trial judge’s reasons, the SCC reiterated that an appellate court only needs to understand the factual basis for the decision. Poorly expressed reasons did not give rise to an appeal. In this case, while it would have been preferable for the trial judge to clearly identify what aspect of consent he was referring to, his failure to do so was not an error.
What Does This Mean For Sexual Assault Law in Canada?
The R v GF ruling has two implications for sexual assault law in Canada. First, consent and capacity are essentially one concept, where capacity is a precondition to consent. Second, a trial judge does not need to give descriptive reasons about consent and capacity as long as the factual basis for the decision is clear from the record.
Jul 18, 2017
Filkow Law welcomes its newest criminal defence lawyer, Jacqueline Halliburn.
Ms. Halliburn comes to us from Thompson, Manitoba, the crime capital of Canada, where she spent the last three years as a Crown Prosecutor.
She specialized in the prosecution of child abuse matters and serious violent crime. Accordingly, Ms. Halliburn knows exactly how the Crown thinks when they are prosecuting violent crime, particularly sexual assault, child abuse and pornography, and young offenders.
With her extensive experience in negotiations, bail and sentencing hearings, and trials at all court levels, we are excited to have her bring her unique perspective to the firm. If you have a case that falls under Ms. Halliburn’s specializations please contact us.
Feb 07, 2017
Sexual assault is one of the most serious charges in the Criminal Code, and the area of law is also one of the most complex.
Over the last few decades, our society has transformed in how it understands and responds to allegations of sexual assault and similar offences, and the legal process in cases of sex assault has been at the centre of a series of recent high-profile news stories in Canada and abroad. Canadian criminal law has transformed, too — and for good reason, because the law used to allow too many old, unproven myths and gender stereotypes.
The law has special rules and procedures meant to address the unique nature of these charges, and society’s interest in balancing fairness for complainants (which is what we call the alleged victim during the legal process) with fairness to the accused.
What is a “sexual assault,” in law?
There are a number of different charges in the Criminal Code that cover different types of specific conduct, but at its core a sexual assault, in law, is an assault (usually touching of some kind) that is sexual in nature and to which the complainant did not consent. Each of these concepts – assault, sexual nature, and consent – means something different in Canadian criminal law than it might in everyday life.
Each case is different, but here are some of the more common scenarios along with examples of the kinds of special rules and procedures that are involved:
In some cases the issue is whether the events in question ever took place. This is more common with historic sex assaults (where the alleged event took place a long time ago) or where the complainant was a child at the time of the alleged events. The law now makes it clear that corroboration – outside evidence that confirms what the complainant says – is not required for a conviction, so the case turns on the complainant’s version of events. Cross-examination of children is a specialised skill on its own, and in cases like this the Crown often uses special procedures to try to have the complainant’s video-taped statements to police used as evidence at trial instead of having the complainant re-tell their whole story when they take the stand to testify in court.
Sometimes nobody disputes that an assault took place, but the issue is who committed the assault. In these situations the police and Crown might gather and use DNA and other types of forensic evidence, which brings with it its own complex body of law about how it can be collected and interpreted in court.
Often, when nobody disputes that the events happened between the particular people, the issue is whether the complainant really did consent or not. If they did consent (as the law defines it), then it is not an assault as far as the law is concerned. This is one of the more difficult scenarios to navigate in the courtroom because there were almost never other people around who can testify about what happened, so it comes down to the complainant’s story versus that of the accused. This is also one of the topics the law has evolved to address differently than it used to. For example, except in rare cases, the complainant’s sexual history can’t be made part of the trial and defence lawyers can’t use it to argue that a complainant was more likely to have consented because they consented to other acts in the past, or that the complainant is generally less worthy of belief.
Another scenario is when the complainant did not consent to the sexual activity but the accused person mistakenly believed that they did. This raises the defence of honest but mistaken belief in consent. Again, though, this is not as simple as just arguing that the accused really did believe it – rather, the law requires evidence that the accused person’s belief was reasonable and that they took real steps to make sure the complainant was consenting. The accused can’t have been reckless or wilfully blind (once again, terms with special meanings in the law) about what the complainant wanted. The law also says the accused can’t argue that their own intoxication was what made them make the mistake.
No matter the facts of the particular case, sexual assault charges have serious consequences for an accused person. If you’re being investigated for or have been charged with a sexual assault or a related offence, it is highly recommended that you contact an experienced criminal defence lawyer to protect your interests throughout the process.