What Counts as Consent in a Sexual Assault Case?

The short answer

In Canadian law, consent means a person's voluntary agreement to the sexual activity in question. This rule is set out in s. 273.1 of the Criminal Code. Consent must exist at the time the activity happens. It must also be for that specific activity. It can also be withdrawn at any point. There is no such thing as implied consent. Silence, not resisting or agreeing to something earlier does not count. Understanding these rules is the starting point for understanding any sexual assault charge.

What the Criminal Code says

Section 273.1 sets out three key rules that courts apply in every case:

• Voluntary agreement: Consent is the complainant's own free choice to engage in the activity, not something given under pressure.
• At the time: Consent must be present when the activity actually happens (s. 273.1(1.1)), so agreement earlier in the evening does not cover what happens later if it is no longer there.
• The specific activity: Agreeing to one sexual act is not agreeing to a different one.

A spouse or partner can be charged with sexual assault (s. 278). Being married, living together or dating does not mean that consent exists.

When the law says there is no consent

The Criminal Code lists situations in which there is no consent at all (s. 273.1(2)):

• Someone else agreed on the complainant's behalf.
• The complainant was unconscious.
• The complainant could not consent for another reason, such as extreme intoxication.
• The accused abused a position of trust, power or authority to obtain the agreement.
• The complainant said or showed, by words or conduct, that they did not agree.
• The complainant agreed at first but then said or showed that they no longer agreed.

This list is not complete (s. 273.1(3)). In addition, agreement obtained through force, threats, fear of force, fraud or the exercise of authority is not valid consent under s. 265(3).

Can consent be withdrawn?

A person can withdraw consent at any time, by words or by conduct. Continuing after consent has been withdrawn is sexual assault. For example, if a partner says "stop" or pushes away partway through, the activity must stop, because agreement at the start does not cover what happens after consent is withdrawn.

Alcohol, drugs and consent

Drinking does not automatically mean that a person cannot consent. The question is whether the person was still capable of agreeing to the activity. A person who is very intoxicated may be unable to consent, and an unconscious person cannot consent at all.

For the accused, being drunk is never an excuse. A belief in consent that comes from your own intoxication is not a defence under s. 273.2. See the mistaken belief in consent defence.

How consent is decided in court

The Crown must prove beyond a reasonable doubt that the complainant did not consent, and you do not have to prove that they did. The court looks at the complainant's state of mind at the time, asking whether they actually agreed to the activity.

This question usually turns on the complainant's testimony. That testimony is tested through cross-examination. It is also compared with other evidence, such as messages, witnesses and the timeline. The judge or jury then decides whether the Crown has proven the absence of consent beyond a reasonable doubt.

Evidence about the complainant's other sexual activity is tightly controlled and needs a court application first. See sexual history and private records rules.

What happens after you are charged

1. Release: Most people are released by police or at a bail hearing, usually with a condition not to contact the complainant directly or indirectly.
2. Disclosure: The Crown provides its evidence, which often includes a recorded statement from the complainant, messages and police notes.
3. Early review: Your lawyer identifies messages or records that may need a court application, because these applications require at least 60 days' notice.
4. Resolution or trial: The case may be withdrawn, resolved or set for trial, and many sexual assault cases do go to trial.

The evidence in a typical case

Sexual assault cases often depend on the accounts of the two people involved. Other evidence can support or contradict those accounts, including text messages and social media, the timeline of the evening, witnesses who saw the people before or after, video from buildings or businesses, and any medical evidence. A conviction can rest on the complainant's testimony alone if the court believes it beyond a reasonable doubt, so careful review of every detail matters.

Effects beyond the sentence

A conviction for sexual assault can lead to a sex offender registry order, a DNA order and a weapons prohibition. It can also affect employment, especially in work with children or vulnerable people, and travel to the United States. Because sexual assault by indictment carries a maximum of 10 years or more, a conviction can make a permanent resident inadmissible for serious criminality.

What to do now

• Do not contact the complainant, directly or through friends, family or social media.
• Keep all messages, photos and social media records, and do not delete anything.
• Do not discuss the allegation with police before you receive legal advice.
• Write down your own timeline of events while your memory is fresh, and give it only to your lawyer.

How we can help

We can review the evidence about what was said and done, and explain how the consent rules apply to your case. Call (647) 223-1980 for a free, confidential consultation. We accept Legal Aid Ontario certificates.

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