Sexual assault cases that involve alcohol are complex. In Canadian law, the presence of intoxication—by either party—raises difficult questions about consent, memory, and intent. Courts must carefully assess whether meaningful consent was given, and whether the accused could reasonably believe that consent existed.
What Is Consent Under Canadian Law?
Under section 273.1 of the Criminal Code, consent is defined as the voluntary agreement to engage in the sexual activity in question. It must be actively and clearly communicated—silence, passivity, or lack of resistance does not count. Consent can also be withdrawn at any time.
When alcohol is involved, the question becomes whether the complainant was capable of giving consent.
Someone who is unconscious or highly intoxicated cannot legally consent to sexual activity. In these situations, even if no physical force was used, the act can still qualify as sexual assault.
Can Intoxication Negate Consent?
Yes. The courts have held that extreme intoxication can make a person incapable of consenting, even if they appear to cooperate during the act. The threshold is high—it’s not about having a few drinks, but rather whether the person was so impaired they could not understand or assess the situation.
Evidence in these cases often includes witness accounts, text messages, surveillance footage, or toxicology reports.
If the Crown proves the complainant was too intoxicated to consent, the accused may be found guilty—even if they believed the interaction was consensual.
What About the Accused’s Intoxication?
Being drunk or under the influence is not a defence to sexual assault in Canada. In fact, the Supreme Court has ruled that self-induced intoxication cannot be used to avoid responsibility for general intent crimes like sexual assault.
That said, the accused may argue that they honestly but mistakenly believed the other person consented.
For this defence to succeed, it must be supported by evidence showing reasonable steps to confirm consent, such as verbal affirmation, clarity of communication, or the complainant’s sober appearance.
This defence does not apply if the belief was based on intoxicated judgment alone or if the accused ignored signs of hesitation or incoherence.
Legal Representation is Non-Negotiable
Alcohol-related sexual assault cases often rely on subjective interpretations, making them highly sensitive and challenging to defend. A conviction carries serious consequences: imprisonment, mandatory registration on the sex offender registry, and lasting effects on personal and professional life.
If you’re facing charges related to sexual assault and alcohol, contact Steele Law to discuss your case. Jerry Steele is an experienced defence lawyer who can review the evidence, assess the role of intoxication, and build a strategy to protect your rights.