Canadian Criminal Law/Consent

General Principles for Consent
The absence of consent is determined on a subjective standard at the time the touching occurs. It is a question of fact determined by the trier-of-fact based on the entirety of the circumstances and the credibility of the complainant.

Under s. 265(3), all forms of assault, including sexual assault under 271, 272, and 273 cannot be consented when the following exists:

Consensual Fight
A consensual fight is not an assault as the parties are consenting to the physical contact. Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused. Thus, where serious bodily harm was intended and caused, there can be no consent. The necessary mens rea requires that the force be applied recklessly and the risk of bodily harm was objectively foreseeable.

Consent in Sports
While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport. Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.

Consent in domestic assaults
There is a degree of implied consent in certain social interactions such as domestic partnerships.

Consent can be used in a limited fashion for a defence to a domestic assault. There must be virtually no injury to the victim. Any injury that occurs can only be justified as an accident and not an intentional assault.

Intentional force intended to cause bodily harm automatically negate any consent. Courts have been highly resistant to recognizing consent to an assault between partners.

Fraud
The failure of the accused to disclose that they are HIV positive before sex can vitiate any consent for sex that the victim gave.

Honest but mistaken belief in Consent
The defence of honest but mistaken belief of consent creates a third alternative to the choice between whether the alleged victim consented to the sexual contact.

The defence is available where there is evidence of a "denial of consent, lack of consent or incapacity to consent" which is interpreted as consent, as well as "evidence of ambiguity or equivocality" showing the possibility of mistaken belief without being wilfully blind or reckless.

Thus, the defence requires:
 * 1) evidence that the accused believed the complainant was consenting;
 * 2) evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
 * 3) evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to  whether she was consenting or not.

Vitiating Consent by Fraud
Where "deception causes a misunderstanding as to the nature of the act itself there is no legally recognized consent because what happened is not that for which consent was given" Consent that is not based on a knowledge of the significant relevant factors in not valid.

Consent for under 16 years of age
There are however sex acts involving persons under 18 years of age that are not criminal. Typically, they can be permitted where there is consent. The key rules are essentially as follows:


 * Persons who are 12 or 13 can consent to sex with persons no more than two years their elder and not in a position of trust (s150.1(2))
 * Persons who are 14 or 15 can consent to sex with persons no more than five years their elder and not in a position of trust. Or they can consent if married. (s150.1(2.1))
 * Persons aged 16 and above can consent as an adult.

Consent Under the Age of 16 Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken.

Mistaken Belief of Age
An accused can only be found guilty of a sex offence under s. 151, 152, 160, 172.1, 173, 271, 272 or 273 which involves a minor where the accused had an honest belief the complainant was of an age of consent. The crown as part of its case should prove beyond a reasonable doubt that the accused failed to take sufficient steps in all the circumstances to ascertain the complainant's age.

The standard to determine the sufficiency of the steps varies depending on the offence. Offences relying on s. 150.1 require the accused take "all reasonable steps", while offences under s. 172.1(4) require "reasonable steps".

Reasonable Steps or All Reasonable Steps
"Reasonable steps" must be assessed in context and will turn on the specific circumstances of the case. Both reasonable steps and "all reasonable steps" must be assessed on the basis of an objective and reasonable person.

Under s. 150.1, "all reasonable steps" is a "due diligence defence". The test is whether the steps ones that “a reasonable person would take in the circumstances” to ascertain a complainant’s age.

Factors to consider include:
 * 1) knowledge of the complainant
 * 2) physical appearance
 * 3) age and appearance of the complainant's associates
 * 4) age differential between the accused and the complainant
 * 5) demeanour of the complainant
 * 6) the time and location of the alleged sexual assault
 * 7) any other relevant times or places

It is generally understood that less familiar the parties are the more steps that are required to confirm there is consent to sexual activity.

The bigger the age difference between the parties the greater the expectation that the accused would make more inquiries. This can mean that a simple visual observation is insufficient.