What is Sexual Assault?
Sexual assault can be any unwanted sexual touch.[1] To establish guilt, the crown must show that a) there was a touch of a sexual nature; b) the complainant did not subjectively, in their own mind, consent to the touch; and c) the defendant intended the touch knowing that the complainant was not consenting.[2]
What Defines Sexual Touching?
What is “sexual” is defined by how a reasonable observer would view the touch in light of the circumstances. Relevant factors include the part of the body touched, the nature of the contact, the situation in which it occurred, any words or gestures accompanying the contact, and the intent of the defendant.[3] In practice, this means that touching that is not explicitly sexual may be considered sexual for the purpose of sexual assault charges.
The defendant does not need to receive sexual gratification from or have a sexual purpose for the touching provided that they violated the complainant’s sexual integrity.[4] For example, the courts have found sexual touching for the purpose of “discipline” or “educating” the complainant can still constitute sexual assault.[5]
Meaning of Consent
Consent is usually the most contentious issue in a sexual assault case. Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question.[6] Consent must also be ongoing throughout the activity, meaning that it can be withdrawn at any time.[7] The complainant does not need to express their lack or withdrawal of agreement to establish that they were not consenting.[8]
Sexual Activity in Question
The courts have interpreted “the sexual activity in question” to include three separate aspects, all of which must be agreed upon for consent to be given.[9] First is the specific physical act itself. Distinctions may be drawn on touching over vs. under clothes, where on the body a person is touched, and what they are touched with. Sexual acts with and without condoms are also considered distinct, so there is no consent where a party fails to use a condom or removes one without agreement (e.g., in cases of “stealthing”).[10]
Second is the sexual nature of the act. Consenting to an act in a nonsexual context, such as a medical exam, is distinct from consenting to the same act in a sexual context.
Last is the identity of the partner. This usually refers to legal identity rather than personal characteristics such as wealth or social status. However, where deception about personal characteristics is so intricate as to knowingly create the appearance of an entirely different personal identity, it may bear on consent.[11]
Where Consent Cannot be Provided
The Criminal Code sets out numerous circumstances that “vitiate” consent that was provided, making it legally invalid. Consent is vitiated where:[12]
- Agreement is expressed by someone other than the complainant.
- The complainant is incapable of consenting. This includes situations in which the complainant was asleep, unconscious, or otherwise incapable of appreciating the sexual activity in question or their choice to participate.[13] Drunkenness does not always mean there is an incapacity, but extreme intoxication usually will.[14]
- Force is threatened or applied, or the complainant fears it will be. Fear does not need to be objectively reasonable or communicated to the accused.[15]
- The defendant abuses a position of trust, power or authority to get the complainant to engage in the activity. This may involve coercion or simply using confidence and personal feelings stemming from the relationship to secure apparent consent.[16]
- The complainant expresses, by words or conduct, a lack of agreement to engage in the activity or to continue engaging in the activity where they have previously consented.
- Consent is obtained by fraud.
- The complainant is under the age of consent (see our article on Sexual Interference).
Honest Belief in Communicated Consent
Defendants have two options to rebut the Crown’s argument that they knew there was no consent. First, they can argue that the sexual activity was consensual. Alternatively, the defence of honest belief in communicated consent is available where they can show that the situation was ambiguous in a way that could explain how, even if the complainant did not subjectively consent, they could reasonably have mistaken the complainant’s words or behaviour as consent.[17]
As the name implies, to establish honest belief, there must be evidence that the complainant’s voluntary agreement was affirmatively expressed, either by conduct or verbally.[18] This means that consent cannot be implied: silence or passivity cannot constitute consent.[19] Similarly, “broad advanced consent” to general sexual acts in the future is not enough; consent must be expressed during the sexual activity.[20]
The defendant must also show that they took reasonable steps in the circumstances to determine that the complainant was consenting. Because consent is particular to the specific physical activity, further inquiry is required when the sexual activity changes or escalates to ensure consent .[21] Once there is a “no” or another obvious indication of nonconsent, the defendant is considered on notice that there is a problem with consent and must obtain a clear and unambiguous “yes” before continuing sexual activity.[22]
Finally, in addition to the conditions vitiating consent noted above, belief in consent is not a valid defence where it results from the defendant’s self-induced intoxication, recklessness, or willful blindness.[23]
Fraud and STI’s
Lying about or not informing a partner that one has an STI may be considered fraud which vitiates consent. This requires that the complainant would not have consented if they were aware of the infection and was placed at significant risk of serious bodily harm, even if the condition is not actually transmitted.[24] For HIV/AIDS, a “realistic possibility of transmission” is sufficient to vitiate consent.[25] However, careful condom use combined with an already-low viral load may reduce the risk below this threshold. The courts have left open the possibility that fraud vitiating consent could apply to other STIs with a sufficient risk of transmission and bodily harm.
[1] R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 23 [Ewanchuk], R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440 at para 65 [JA]
[2] JA, ibid at para 24
[3] R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293
[4] R. v. V. (K.B.), 1993 CanLII 109 (SCC), [1993] 2 SCR 857
[5] Ibid; R. v. M.M., 1996 CanLII 943 (ONCA)
[6] Criminal Code, R.S.C 1985 c C-46, s.273.1(1) [Criminal Code]
[7] Criminal Code, ibid, s.273.1(1.1); JA, supra note 1 at 66)
[8] JA, ibid at para 37
[9] R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras 55 and 57 [Hutchinson]
[10] R. v. Kirkpatrick, 2022 SCC 33
[11] R v Sanmugarajah, 2018 ONCJ 661 at paras 196-197
[12] Criminal Code, supra note 5, s.265(3) and s.273.1(2)
[13] JA, supra note 1; R. v. G.F., 2021 SCC 20 at para 57-58
[14] JA, ibid; R v JR, 2006 CanLII 22658 (ONSC), CR (6th) 97 (Ont. SCJ)
[15] Ewanchuk, supra note 1
[16] R. v. Lutoslawski, 2010 ONCA 207 at para 12
[17] R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759 at para 86
[18] Criminal Code, supra note 5, s.273.2
[19] Ewanchuk, supra note 1 at para 51
[20] R v Barton, 2019 SCC 33 (CanLII), [2019] 2 SCR 579, at para 99
[21] Ewanchuk, supra note 1 at para 99
[22] Ibid
[23] Criminal Code, supra note 5, s.273.2
[24] R. v. Mabior, 2012 SCC 47, [2012] 2 SCR 584 para 104
[25] Ibid
