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Sexual Violence

Under section 265 of theCriminal Code,any type of intentional and unwanted force applied to another person constitutes assault. Sexual assault is a separate crime under section 271 of theCode. Section 272 prohibits sexual assault with a weapon, threats to third party or causing bodily harm, while section 273 addresses aggravated sexual assault that involves wounding, maiming, disfiguring or endangering life.

Legal Definitions of Consent

The issue of consent to the sexual activity in question has been contentious in Canadian law. Consent relating to sexual assault is addressed in Section 273.1 of theCriminal Code. There are four requirements for consent: there must be agreement; consent must be voluntary; consent must come from the complainant; consent must relate to the sexual activity in question. Therefore, the current legislation sets out a positive definition of consent as a voluntary agreement.

Section 265(4) of theCodeis the provision dealing with the defence of "honest but mistaken belief in consent". It applies where an accused alleges that he believed that the complainant consented to the conduct. If a judge is satisfied that there is sufficient evidence that would constitute this defence, the judge will instruct the jury to consider the presence or absence of reasonable grounds for that belief.

Sections 273.1(2) and 265(3) state that consent cannot be obtained by force, threats, fraud, or exercise of authority, and section 273.1(3) says that subsection (2) in no way limits the circumstances in which no consent is obtained. Furthermore, Section 273.2 attempts to limit the applicability of the defence of honest but mistaken belief. It says that there is no defence when the accused's belief in consent arose from i) self induced intoxication, or ii) recklessness or willful blindness. Section 273.2(b) further adds that there is no defence when the accused did not take reasonable steps in the circumstances to ascertain whether the complainant was consenting. The reasonableness of the steps is measured against the circumstances known to the accused at the time.

A leading case on the issue of consent, now overruled, wasR. v. Pappajohn[1980] 2 S.C.R. 120. In this case, the Supreme Court justices held that if there was an unreasonable but honestly held belief in consent, the accused could be acquitted if the fact finder found a reasonable doubt. Another significant case wasSansregret v. The Queen[1985] 1 S.C.R.570. In this case, the victim claimed that her consent to intercourse was solely for the purpose of calming down the accused in order to protect herself from further violence. The Supreme Court found the accused guilty under s. 273.2(a)(ii) in that he was wilfully blind to the issue of consent. In the case ofR.v.M.(M.L.)

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