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What to Know About the Consent Defence in Canadian Criminal Law

Criminal defence lawyers rely on many different strategies to secure acquittals or other favorable outcomes for their clients at trial. If warranted by the evidence, the defence strategies generally rely on proving the suspect’s innocence. However, when the Crown seems capable of proving beyond a reasonable doubt that the suspect intentionally committed the crime, criminal lawyers often turn to alternative defence strategies.

The Greater Toronto Area criminal defence lawyers at Mass Tsang detailed the alternative defence strategy of Abandonment in a December blog. This month we will examine the consent defence, an “excuse” form of defence that can be raised in assault, sexual assault, and some property crime cases. The issue of consent in assault cases — and especially sexual assault ones — is so essential that relevant sections of Canada’s Criminal Code clearly define it. Further clarity on the use of the consent defence has been established by legal precedents set by Supreme Court of Canada rulings.

Be advised that no information in our blogs should be taken as “legal advice”, as it is offered here solely for educational purposes. Those facing criminal charges should always seek counsel from an experienced criminal defence lawyer to mount the most effective defence. With a successful record of defending thousands of Ontario residents from criminal charges, consult with Mass Tsang criminal lawyers for your criminal defence.

The Consent Defence is Simple in Concept, But Not in Practice

Simply put, the consent defence relies on proving that the victim consented to the criminal act, thus nullifying its criminality. Consent can be expressed or implied, and common law generally dictates that consent can only be deemed viable if:

  • It was given voluntarily.
  • It was given by someone legally capable of providing it.
  • It was not provided due to fraud or errors nor under force or duress.

The application of the consent defence in property crimes is relatively straightforward. If someone gave you permission to take or borrow their car and you were subsequently arrested for stealing it, you would undoubtedly raise this issue in court. Absent supporting evidence, the case's outcome could hinge on whether the judge or jury believes you or the complainant. The consent defence gets more complicated with assault and sexual assault cases.

Assault Charges Must Lack Consent

Section 265 (1a) of Canada’s Criminal Code states specifically that an assault must be “without the consent of another person, he applies force intentionally to that other person, directly or indirectly.” This puts the onus on the Crown to prove that the victim did not consent to the assault.

Section 265 (3) of the Code further defines instances under which consent given by a victim is not valid. Similar to common law, they include:

  • That the consent was not given under the application of force to the victim or other person.
  • That the consent was not given due to threats or fear of the application of force to the victim or other person.
  • That it was not given due to fraud.
  • That it was not provided under an “exercise of authority”.

In large part to address implied consent, Section 265 (4) of the Code dictates how judges should address the “accused’s belief as to consent”:

“Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.”

The idea of implied consent often arises in assault cases that can be attributed to fighting because it “takes two to tango.” However, even if a defendant can successfully raise the issue of implied consent based on the assault being an inherent part of a fight, it does not mean that they have totally proven consent in context with assault. A precedent-setting 1991 Supreme Court Decision— R. v. Jobidon (2 S.C.R. 714) — established that while people can consent to a fistfight, they cannot consent to bodily harm. While the trial judge had determined that the deceased victim’s consent to fight negated the assault, the high court ruled that “there are limitations on the extent of harmful conduct to which one may validly consent and thereby bar conviction for assault.” In short, the high court established that the consent defence — implied or otherwise — is not valid in assault cases involving significant bodily harm (or death).

Consent Explicitly Defined in Sexual Assault Provisions

Sexual assault provisions of the Criminal Code clearly define consent and limit a defendant’s ability to legally assert that consent was provided. Starting with Section 273.1 (1), the Code states that “consent means, for the purposes [of other sexual assault provisions], the voluntary agreement of the complainant to engage in the sexual activity in question.” This consent must be present during the time the sexual activity took place. For the purposes of the law, consent has not been obtained if:

  • “the agreement is expressed by the words or conduct of a person other than the complainant;
  • “the complainant is unconscious;
  • “the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
  • “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  • “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  • “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.”

Furthermore, Section 273.2 makes it clear that the consent defence is not valid when:

  • The accused’s beliefs regarding consent arose from self-induced intoxication, recklessness, or willful blindness.
  • The accused failed to take reasonable steps under the circumstances at the time “to ascertain that the complainant was consenting.”
  • There is no evidence that the consent was “affirmatively expressed by words or actively expressed by conduct.”

Let Mass Tsang Lawyers Strategize Your Criminal Defence

The consent defence is just one of many strategies the lawyers of Mass Tsang consider when developing defence strategies for their assault and sexual assault clients. Mass Tsang lawyers examine every element of each criminal case when strategizing an effective defence for our Greater Toronto Area clients. If you or a loved one is facing criminal charges in the Toronto area, contact the highly experienced lawyers at Mass Tsang to secure the most favorable outcome possible.

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