Consent (Sexual)
In Canadian sexual offence law, consent is defined by statute. Section 273.1(1) of the Criminal Code defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question." The definition is statutory; courts cannot apply a different one. Most contested sexual assault cases turn on whether the Crown has proven absence of consent beyond a reasonable doubt — or, in narrow circumstances, whether the accused had a reasonable but mistaken belief that consent was given.
The Supreme Court has held in R v JA, 2011 that consent must be contemporaneous — present at the time of the sexual activity. A person cannot give advance consent to sexual activity that takes place while they are unconscious. Consent can also be withdrawn at any time, by words or conduct.
The reasonable steps requirement is critical. The Supreme Court's decision in R v Barton, 2019 makes clear that the accused must have done something — communication, observation, attention to the complainant's expressed signals — to confirm consent. Assumptions, inferences from prior relationships, or post-hoc rationalizations are not enough.
Where consent is invalid
Section 273.1(2) lists circumstances in which consent is not legally obtained, even if the complainant appears to agree: where the agreement is expressed by someone other than the complainant; where the complainant is incapable of consenting — for example, due to intoxication, unconsciousness, or mental incapacity; where the accused induces consent through abuse of a position of trust, power, or authority; where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; where the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue.
Mistaken belief in consent
Where the accused honestly believed the complainant consented but in fact did not, section 273.2 sharply limits the availability of the mistaken-belief defence. The defence is unavailable where: the accused's belief arose from self-induced intoxication, recklessness, or wilful blindness; the accused did not take reasonable steps, in the circumstances known to them at the time, to ascertain that the complainant was consenting; or the complainant was incapable of consenting, or expressed a lack of consent.
Age of consent rules
Consent is legally invalid where the complainant is below the age of consent, subject to narrow close-in-age exceptions. The general age of consent is 16 years, but it rises to 18 in any relationship of trust, authority, dependency, or exploitation. Mistaken belief in age is available as a defence only where the accused took all reasonable steps to ascertain age — and even then, only in narrow circumstances.
Consent and capacity
A complainant who is so intoxicated as to lack the capacity to consent — or who is unconscious — cannot give legal consent. R v JA, 2011 settled the question in the unconsciousness context. R v GF, 2021 provided further direction on capacity, distinguishing between intoxication that affects judgment (which does not necessarily negate capacity) and intoxication so severe that the complainant cannot understand what is happening.
How Mass Tsang approaches consent cases
Sexual offence cases turn on careful, evidence-based analysis of the consent question — what was said, what was done, what each party believed, and what reasonable steps were taken. The lawyers at Mass Tsang's sexual assault practice have decades of experience defending these cases across the GTA. To learn more, see our blog posts on the consent defence, the three primary defences in sexual assault cases, and the key issues for those accused of sexual assault in Toronto.
Related glossary terms
