Vitiated consent: when “YES” can actually mean “NO”


Sexual assault is a very serious criminal offence and can lead to sentences that include a great deal of time in custody and registration with the National Sex Offender Registry.

It is important to bear in mind that Canadian criminal law has evolved quite a bit in recent decades with respect to what constitutes sexual assault. The offence of sexual assault is not limited to forced acts of sexual intercourse. If an assault (essentially, any unwanted touching) takes place “in circumstances of a sexual nature such as to compromise the sexual integrity of the complainant” (R v Lutoslawski, [2010] 3 SCR 60), that constitutes a sexual assault.

The Supreme Court of Canada has held that the actus reus (the criminal act) of sexual assault is established by the Crown proving three elements: 1) touching; 2) the sexual nature of the contact; and 3) the absence of consent (R v Ewanchuk, [1999] 1 SCR 330). While the first two elements are objective, the third is subjective. The mens rea (the criminal intent) component of sexual assault involves the Crown proving that the accused intended to touch the victim and also knew or ought to have known that there was an absence of consent or that the accused was reckless or willfully blind with respect to consent.

The element of consent vis-à-vis sexual assault offences has attracted a great deal of attention in recent years.

 

Section 273.1(1) of the Criminal Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.”

Section 273.1(2) states that no consent is obtained in circumstances where:

  • a) the agreement is expressed by the words or conduct of a person other than the complainant;
  • b) the complainant is incapable of consenting to the activity;
  • c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  • d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  • e) the complainant, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity.

 

This list includes fairly obvious instances where no consent is obtained. It should come as no surprise that consent must come directly from the person actually involved. Additionally, people not legally able to give consent—such as minors under the age of 16 or individuals, of any age, who are unconscious—are obviously not able to consent to sexual activity.

However, it is vital to note that section 273.1(3) states that “nothing” in the above list “shall be construed as limiting the circumstances in which no consent is obtained.” Because this provides a great deal of discretion to the courts with respect to interpretation, the issue of consent has been the focus of countless cases in recent years.

Again, some of these cases seem rather obviously criminal. For instance, in R v Hutchinson, [2014] 1 SCR 346, the Supreme Court of Canada held that where the complainant consented to intercourse involving the use of a condom, but where the accused intentionally poked holes in the condom (which ultimately resulted in pregnancy), this act “vitiated” (negated) the consent provided by the complainant.

Additionally, there have been a number of cases (see, for instance, R v Mabior, [2012] 2 SCR 584) in which the courts have held that deceit with respect to HIV status or failure to disclose HIV-positive status may, in certain circumstances, constitute fraud which can act to vitiate consent.

Fraud as to “identity” or “nature and quality” of the act can negate consent. In fact, “other acts of dishonesty” may also “be shown to vitiate consent” on “a principled basis” (see: R v GC, 2010 ONCA 451 at para 22). This area is where things can get quite complicated.

A very interesting example is the case of R v GC, 2010 ONCA 451. In this case, GC was charged with sexually assaulting the girlfriend of his identical twin brother (“CC”). During a party at CC’s residence (during which time everyone present, including GC, CC, and the complainant) were drinking, CC’s girlfriend went to his bedroom and fell asleep in his bed. A few hours later, GC became quite tired and, at the suggestion of CC, went to CC’s bedroom to rest. When GC entered the darkened room, he noticed that the complainant was asleep in the bed but decided to also get into bed, thinking that no harm would come of this, as they were friends.

Although there was conflicting evidence as to what happened next, it is undisputed that GC and the complainant engaged in sexual intercourse, which stopped when the complainant realized that the person in bed with her was in fact GC as opposed to CC. Here, GC was found guilty of sexual assault, as he did not take the proper, reasonable steps in the view of the court to ensure that the complainant was aware of his true identity. At paragraph 24, the Ontario Court of Appeal stated: “Where, as here, the complainant’s consent to sexual activity depended on it being with a particular person, her mistake about the identity of that person whether induced by fraud or not, necessarily means that subjectively she did not voluntarily agree to the sexual activity that occurred with someone else.”

The facts of R v GC are, quite thankfully, so extraordinary that this particular situation is unlikely to ever arise in the future. (And as the adage goes, “Hard cases make bad law…”) However, this judgment raises some very interesting questions. For example, how would the law treat someone who lies to another person about his occupation in order to impress the other person, with the intention of “scoring a one-night stand”? How about misleading with regard to income/wealth, marital/relationship status, family background, age, etc.?

As Justice McLachlin (as she then was) wrote in R v Cuerrier, [1998] 2 SCR 371, “It is open to courts to make incremental changes by extending the common law concepts of nature of the act and identity, provided the ramifications of the changes are not overly complex.” It will be interesting to see how the law in this area changes over time.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.