Consent Defence in Sexual Assault Cases — Canadian Law Explained

What Is Consent Under Canadian Law

Consent to sexual activity is defined in section 273.1(1) of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. This definition applies to all sexual offences, including sexual assault, sexual interference, and invitation to sexual touching.

The Supreme Court of Canada in R v. Ewanchuk, [1999] 1 SCR 330 established several foundational principles. Consent is determined from the complainant’s subjective perspective — what they were actually thinking and feeling at the time. There is no defence of “implied consent” in Canadian law. Silence, passivity, or ambiguous behaviour does not constitute consent. And consent must be given to each specific sexual act — consent to one form of activity does not imply consent to another.

For the accused, the critical question is often not whether consent existed subjectively, but whether the accused had an honest but mistaken belief that consent was present. This is a separate legal question with its own requirements, discussed below.

When Consent Cannot Be Given

Section 273.1(2) lists circumstances where no consent is obtained as a matter of law, regardless of what the complainant may have said or done:

• Incapacity. A person who is unconscious, asleep, or so intoxicated that they cannot understand the nature of the activity or appreciate that they can refuse it cannot consent.
• Authority or trust. No consent is obtained where the agreement is expressed by someone other than the complainant, or where the complainant is induced to agree by abuse of a position of trust, power, or authority.
• Age. A person under 16 cannot consent to sexual activity with an older person (subject to close-in-age exceptions). A person under 18 cannot consent where the other person is in a position of trust or authority.
• Withdrawal. Consent can be withdrawn at any time. Once the complainant communicates withdrawal of consent — by words or conduct — continued sexual activity constitutes sexual assault.
• Agreement by a third party. No consent exists where a third party purports to consent on the complainant’s behalf.

If any of these circumstances apply, the defence of honest but mistaken belief is not available. The law treats consent as legally impossible in these situations.

Honest but Mistaken Belief in Consent

Even where the complainant did not subjectively consent, the accused may be acquitted if they held an honest but mistaken belief that consent existed. This defence is codified in section 273.2 of the Criminal Code, which also sets out when the defence is not available.

The defence requires two components: (1) the accused subjectively and honestly believed the complainant was consenting, and (2) the accused took reasonable steps, in the circumstances known to them at the time, to ascertain that the complainant was consenting. A belief based on self-induced intoxication, recklessness, or wilful blindness is not an honest belief. A belief arising from the accused’s failure to take reasonable steps is not available as a defence.

The “reasonable steps” requirement was strengthened by the Supreme Court of Canada in R v. Barton, 2019 SCC 33. The Court held that the more ambiguous the circumstances, the more steps are required. What constitutes reasonable steps is assessed objectively but in light of the circumstances subjectively known to the accused at the time.

The Kirkpatrick Decision: Conditional Consent

In R v. Kirkpatrick, 2022 SCC 33, the Supreme Court addressed whether consent can be conditional on condom use. The complainant consented to sexual intercourse with a condom. The accused removed the condom without the complainant’s knowledge (“stealthing”). The Court held that there was no consent to the sexual activity that actually occurred.

The majority held that consent under section 273.1 is to the specific physical act that takes place — not to a generalized category of sexual activity. If the complainant consents only to sex with a condom, sex without a condom is a different physical act to which no consent was given. This analysis does not require resort to fraud vitiating consent under section 265(3)(c) — it operates directly under the definition of consent in section 273.1.

For the defence, Kirkpatrick means that any conditions the complainant attaches to their consent must be taken seriously. The scope of what was consented to is now assessed more granularly by courts.

The Barton Decision: Steps to Ascertain Consent

R v. Barton, 2019 SCC 33 is one of the most significant sexual assault decisions of the last decade. The Court addressed the defence of honest but mistaken belief in consent and substantially raised the bar for what constitutes “reasonable steps.”

Key holdings from Barton include:

• The accused must point to evidence of affirmative communication of consent — not merely the absence of a “no.”
• The more ambiguous the circumstances (intoxication, power imbalances, unfamiliarity between the parties), the greater the steps required.
• The defence cannot succeed where the accused was wilfully blind to the complainant’s lack of consent or proceeded despite ambiguity without checking.
• Trial judges must clearly instruct juries on the relationship between the actus reus (absence of consent) and the mens rea (honest but mistaken belief).

For defence counsel, Barton means that building the mistaken belief defence requires identifying specific words, actions, or circumstances that gave rise to the accused’s belief. A vague assertion that “I thought they were consenting” is insufficient without evidence of what the accused observed and what steps they took.

Advance Consent: R v. J.A.

In R v. J.A., 2011 SCC 28, the Supreme Court held that consent must be contemporaneous with the sexual activity. A person cannot consent in advance to sexual activity that will occur while they are unconscious.

The case involved a couple in a relationship who had previously engaged in erotic asphyxiation. The complainant lost consciousness and the accused continued sexual activity. The Court held that regardless of prior agreement or the nature of the relationship, consent requires a conscious, operating mind at the time the sexual activity occurs.

J.A. has significant practical implications. It means that:

• A person who falls asleep or passes out cannot have given advance consent to sexual activity that occurs afterward
• Prior discussions or agreements about sexual preferences do not constitute consent to future acts
• The complainant must have the capacity to withdraw consent at all times during the activity

For defence counsel, J.A. cases often turn on whether the complainant was truly unconscious or merely appeared so, and on the precise timing of the sexual activity relative to any loss of consciousness.

Intoxication and Consent

Intoxication and consent is one of the most fact-dependent areas of sexual assault law. The law does not provide that intoxicated consent is invalid. A person who has been drinking or using drugs can still consent to sexual activity — provided they retain the capacity to do so.

The legal question is whether the complainant was so intoxicated that they could not: (1) understand the sexual nature of the activity, (2) appreciate that they had the choice to refuse, or (3) communicate their decision. Below this threshold of incapacity, consent remains legally possible even if judgment is impaired.

This creates a difficult evidentiary question at trial. The Crown must prove beyond a reasonable doubt that the complainant lacked the capacity to consent. Defence counsel may challenge this by pointing to evidence of the complainant’s behaviour — purposeful actions, coherent speech, voluntary participation — that suggests capacity was retained despite intoxication.

For a broader overview of how sexual assault charges are prosecuted and defended in Ontario, see our comprehensive guide.

How We Build a Consent Defence

Building a consent defence requires meticulous preparation and an understanding of how courts assess the evidence. Our sexual assault defence lawyers approach these cases by:

• Mapping the evidence of consent. Every communication, action, and circumstance that supports the existence of consent is identified — text messages, the sequence of events, the behaviour of both parties, and third-party observations.
• Identifying reasonable steps. If the defence of honest but mistaken belief is engaged, we document what the accused observed and what steps they took to ascertain consent. This evidence must be specific and grounded in the circumstances.
• Challenging the complainant’s account. Where the complainant’s testimony about the absence of consent is inconsistent with the documentary evidence, prior statements, or the conduct of the parties, these inconsistencies are exposed through cross-examination.
• Section 276 applications. Where evidence of the complainant’s other sexual activity or communications is relevant to the consent issue, a pre-trial application under section 276 is brought to admit the evidence.
• Expert evidence. In cases involving intoxication, toxicologists can provide evidence about the effects of alcohol or drugs on capacity. In cases involving memory, experts on memory and recall can assist the trier of fact.

For a full overview of our approach to sexual offence defence, including case results, see our practice area page.

What the Crown Must Prove

In every sexual assault case, the Crown bears the burden of proving the following beyond a reasonable doubt:

1. The sexual touching occurred. The accused intentionally applied force of a sexual nature to the complainant.
2. The complainant did not consent. Assessed from the complainant’s subjective perspective at the time of the activity.
3. The accused knew or was reckless/wilfully blind to the absence of consent. This is the mens rea element — either the accused knew there was no consent, was reckless as to whether consent existed, or was wilfully blind to the complainant’s non-consent.

If the accused raises an honest but mistaken belief in consent, the Crown must also negate that belief beyond a reasonable doubt. The defence succeeds if it raises a reasonable doubt — it does not need to be proven on a balance of probabilities.

For more on what the Criminal Code says about sexual assault under the Criminal Code, see our statutory overview.