The Mistaken Belief in Consent Defence

The short answer

The mistaken belief defence says that you honestly believed the complainant had communicated their agreement to the sexual activity. If that belief was honest and the conditions in the law are met, you are not guilty, even if the complainant did not actually consent. However, it is a narrow defence, and s. 273.2 of the Criminal Code puts firm limits on when it can be used. Understanding those limits early helps you and your lawyer decide whether the defence fits your case. See our sexual assault page for an overview.

What the defence is

The question is not what the complainant was thinking. It is what you believed the complainant had communicated to you. The focus is on whether you honestly believed the complainant had said or shown "yes" to the specific activity, through words or active conduct.

This is different from the main question of consent, which looks at the complainant's actual state of mind. A person can be found not guilty because the Crown fails to prove the absence of consent, or because the Crown fails to disprove an honest belief in communicated consent.

When the defence is not available

Section 273.2 says the defence cannot be used in the following situations:

• Intoxication: Your belief came from your own drinking or drug use.
• Recklessness or wilful blindness: You knew there was a risk the complainant was not agreeing and went ahead anyway, or you deliberately avoided finding out.
• No consent in law: The law says there was no consent, for example because the complainant was unconscious, said no, or you abused a position of trust.
• No reasonable steps: You did not take reasonable steps, given what you knew at the time, to find out whether the complainant agreed.
• No communicated agreement: There is no evidence that the complainant's agreement was expressed by words or actively shown by conduct.

What "reasonable steps" means

There is no checklist for reasonable steps. What counts depends on what you knew at the time, and the more uncertain the situation, the more you need to do to confirm agreement.

For example, with a new partner, after drinking, or when the activity changes, clearly asking and getting a clear answer is usually central. Relying on a past relationship or on how someone was dressed is not a reasonable step.

Mistakes about the law do not count

The defence covers mistakes about facts, not mistakes about the law. The following beliefs are not a defence:

• A belief that silence or not resisting means yes.
• A belief that past sexual activity means consent now.
• A belief that agreement given in advance covers a time when the person is asleep or unconscious.
• A belief that "no" can mean "yes."

How the defence is decided at trial

First, the judge decides whether there is enough evidence for the defence to be considered at all, which is sometimes called the "air of reality" step. If there is, the Crown must prove beyond a reasonable doubt that you did not honestly believe agreement was communicated, or that one of the limits in s. 273.2 applies.

The evidence for the defence usually comes from the accused's own testimony, although it can also come from other sources, such as messages or witnesses. Whether to testify is one of the most important decisions in a sexual assault trial, and it should be made with legal advice after reviewing all the disclosure.

What happens after you are charged

1. Release: Most people are released with a no-contact condition.
2. Disclosure: The Crown provides the complainant's statement, messages and police notes.
3. Defence review: Your lawyer assesses whether consent, mistaken belief or another issue is the strongest defence.
4. Trial preparation: Messages and records that may need a court application are identified early.

The evidence that matters

Evidence relevant to this defence often includes what each person said before and during the activity, messages exchanged before and after, how much each person had to drink, and what witnesses saw. Because the defence depends on the accused's knowledge at the time, the full context of the evening is usually important.

Effects of a conviction

A conviction can lead to jail, probation, a sex offender registry order, a DNA order and a weapons prohibition. It can also affect employment, travel and immigration status. See sexual assault penalties.

What to do now

• Do not contact the complainant, directly or indirectly.
• Keep all messages and records, and do not delete anything.
• Do not explain your side to police before you receive legal advice.

Situations where the defence often comes up

The defence is most often raised where the people involved knew each other. It also comes up where there were mixed signals, or where messages before or after the event suggest agreement. It is less likely to succeed where there was heavy drinking, a large age gap or a power imbalance. In those situations, the law expects much more care before going ahead.

Why the steps you took matter

The court looks closely at what you actually did to confirm agreement. Did you ask? Did you get a clear answer? Did you check again when things changed? The answers to these questions often decide whether the defence can succeed. A belief based on assumptions, rather than on what the other person said or did, will usually fail.

How we can help

We can assess whether this defence fits the evidence, and how it works alongside the main question of consent. Call (647) 223-1980 for a free, confidential consultation.

Frequently asked questions