Consent is a central element in sexual assault cases under Canadian law. Courts undertake a detailed analysis to determine whether consent was present, as it defines the difference between lawful conduct and a criminal act. 

Understanding how consent is assessed is very telling about the legal process and helps individuals recognize their rights and responsibilities.

The Legal Definition of Consent

In Canada, consent is defined in the Criminal Code of Canada as a voluntary agreement to participate in sexual activity. 

Consent must be communicated clearly through words or actions and remain active throughout the interaction. It can be revoked at any time for any reason.

Silence or ambiguous behaviour does not qualify as consent. Additionally, consent cannot be given if someone is under duress, unconscious, or incapable due to the effects of alcohol or drugs.

Factors Courts Consider

Before a court makes a consent decision, it first considers several factors.

• Clarity in Communication

Courts evaluate how consent was expressed between two parties. This includes examining whether both individuals clearly agreed to the activity and maintained that agreement throughout. 

Misunderstandings or lack of explicit communication are heavily scrutinized.

• Power Dynamics and Pressure

Relationships involving unequal power, such as between a supervisor and an employee, receive close attention. Courts assess whether external pressures or implied threats compromised one party’s ability to consent.

• Incapacity

The law is clear that individuals who are unconscious, heavily intoxicated, or otherwise incapacitated cannot give consent. Medical reports, toxicology tests, and witness accounts are often used to determine if a person was actually capable of consenting.

• Previous Interactions

Past consensual encounters do not imply consent for future activities. Each instance is judged on its own circumstances, regardless of prior relationships or agreements.

Evidence Used in Consent Cases

The courts examine a range of evidence, including testimonies, digital communications, and physical findings, to understand what occurred. Expert witnesses may also contribute, offering insights on behaviour or psychological factors relevant to the case.

We talk more about this topic in this article: Understanding Consent and Sexual Assault in BC: What Does the Law Say?

Why Hiring an Experienced Lawyer Matters

Jerry Steele’s extensive experience in criminal defence equips him to challenge weak evidence, question inconsistencies, and protect clients’ rights. 

A strong defence relies on a detailed understanding of the law and a strategic approach to handling the evidence presented in court.

Contact Jerry Steele today for fierce representation against sexual assault charges.