Sexual offences:

Sexual Assault – Section 271….Sexual assault with a weapon, threats to a third party, or causing bodily
harm – Section 272….Aggravated sexual assault – 273: if it wounds, maims, disfigures or endangers the
life of the complainant

Actus Reus:

- Assaults under 265:

o ALL assaults include the intentional application of force, directly or indirectly, to
another person without that person’s consent
 Or attempting or threatening by acts or gestures to apply force if it causes
the other person to believe upon reasonable grounds that the accused has
the ability to effect his or her purpose
- Consent under section 273.1: consent is defined as “the voluntary agreement of the
complainant to engage in the sexual activity in question” which requires that the
complainant must agree to each particular sexual activity and can revoke or limit the scope
of consent at any time per R v Barton
- Ewanchuk:

Facts: accused purported to interview a 17 year old for a job, in the course of the
interview the accused engaged the complainant in sexual advances. Complainant said
no to each advance but accused was persistent… complainant said she was fearful and
accused was aware of her fear but she submitted…complainant tried to rely on the
defence of implied consent
- Issue: does implied consent exist and did a sexual assault occur?
- Held:
o SCC interpreted the AR of sexual assault as requiring 3 elements:
 1) Touching – objective test
 2) The sexual nature of the conduct – objective test
 3) Absence of consent – subjectively determined through reference
to the complainant’s internal state of mind towards the touching at
the time it occurred as opposed to external and objective standards
of law. If the complainant says she did not consent, the only issue is
whether she is a credible complainant
o SCC rejected the defence of implied consent and the idea that although the
complainant did not actually consent, her conduct satisfied the objective
standard of implied consent – no matter how strongly her conduct may
contradict that claim the absence of consent is established. A belief by the
accused that the complainant, in her own mind, wanted him to touch her
but did not express that desire, is not a defence.

- 2) the sexual nature of the conduct:

o Are the circumstances viewed as objectively sexual?
o Sexual assault differs from sexual offences with respect to young people in section
151 through 153.1 and the courts will examine all the circumstances including the
part of the body touched, the nature of the conduct, the words and gestures
 accompanying the act and all other circumstances surrounding the conduct to
determine if the assault is sexual.. the intent or purpose of the person committing
the act may also be a factor – R v Chase 1987 - Man grabbing 15 year old’s breast
saying I know you want it. Standard is what the neutral observer would view as
sexual
 Father grabbing 3 year old’s genitals to discipline him was sexual because it
invaded the child’s sexual integrity – R v V(KB) – purpose may not have been
sexual or the intention may not have been sexual but it effects the child’s
sexual integrity of the rest of their life… the neutral observer is not looking
at his intention, they are looking at the action and interaction
- 3) lack of consent
o Can consent be given in advance?
 R v JA 2011 SCC –

Facts: JA and KD engaged in erotic asphyxiation before… KD had consented to

the choking and understood she might lose consciousness. During the course
of action when KD regained consciousness she found JA inserting a dildo into
her anus, the two proceeded to have sexual intercourse after. KD made
complaint to the police 2 months after and stated while she consented to the
choking, she had not consented to the dildo insertion

Issue: can a person preform sexual acts on an unconscious person if the

person consented to those acts in advance of being rendered unconscious?
And does the CC require conscious, operating mind throughout sexual
activity?

Held: consent requires the complainant to be conscious throughout the sexual

activity in question.. legislation requires ongoing, conscious consent and
individuals must be capable of asking their partners to stop at any point
- 273.1(2)(b): no consent if C is incapable of consenting to the
activity
- 273.1(2)(e): people should be capable of withdrawing consent at
any time
- 273.2(b): must take reasonable steps to ascertain consent at the
time it occurred
- Consent is only meaningful when you are in a position that you
able to withdraw consent… consent remains valid only so that you
are in a position to withdraw
- Arguments of dissent (Fish): we should not restrict the scope of
autonomy for women by denying them the possibility of granting
advance consent.. concept of continuous consent seems
unrealistic and parliament is the appropriate body to alter the law

- Specific instances where consent is not valid – Factors that vitiate consent
o Reference to these provisions only made where the court finds that the
complainant either voluntarily agreed to the sexual activity in question or
there is reasonable doubt about such consent… Section 265(3) CC:

No consent obtained where the complainant submits or does not resist by reason
of:
a) The application of force to the complainant or to a person other than the
complainant
b) Threats or fear of the application of force to the complainant or to a
person other than the complainant
c) Fraud
d) The exercise of authority
b) the complainant’s fear need not be reasonable, nor must it be communicated
to the accused in order for consent to be vitiated. While the plausibility of the
alleged fear, and any overt expression of it, are obviously relevant to assessing
the credibility of the complainant’s claim that she consented out of fear, the
approach is subjective
o Consent has been vitiated by fraud that relates to the nature of the act itself
or the identity of the person conducting the act
 Not disclosing sexually transmitted disease would not be found
guilty of sexual assault – R v Cuerrier: held that fraud could negate
consent in a case where a dishonest act in the form of falsehoods or
failure to disclose would have the effect of exposing the person
consenting to a significant risk of serious bodily harm and the crown
must prove that the complainant would have refused to engaged in
unprotected sex with the accused had she been informed that he
was HIV positive… approach affirmed in R v Mabior
o Per R v Cuerrier there must be 1. A dishonest act, 2.
Deprivation (denying the complainant knowledge that
would have allowed her to refuse consent to exposure of
significant risk of serious bodily harm)
 R v Mabior: its not about what you are lying about, its about how
real the consequences of the lie which is the ‘significant risk’ of
bodily harm

Facts: A was convicted of sexual assault for having protected and

unprotected sex with some women without disclosing HIV+
status. The none of the complainants contracted HIV, most of
them stated that they would not have consented to sexual
relations with the accused if he had disclosed his HIV+ status

Issue: whether failure to advise partner of HIV status may

constitute fraud vitiating consent under s.265(3)(c) and whether
HIV+ person who engages in sexual relations without disclosing
commits aggravated sexual assault… and ‘what is significant risk’
and what is “serious bodily harm”
 Held: failure to disclose amounts to fraud where the complainant
would not have consented had he or she known the accused was
HIV+, and where sexual contact poses a significant risk of, or
causes actual seriously bodily harm

‘Significant risk’: real possibility of contraction of disease and the

‘realistic possibility’ test is specific to HIV may vary with the
degree of harm [viral load + condom use]  here A was acquitted
on condom use case but not cases where there was no condom
use

 R v Hutchinson: a poked holes in condom, girlfriend became prego…

held by majority that unwanted pregnancy is a deprivation and thus
consent is vitiated by fraud

MR: fault element is subjective but there must be reasonable grounds in the belief of consent

Per Ewanchuk the Fault elements are: intention to touch + recklessness or wilful blindness concerning
consent

1) Intent to touch [no fault element concerning sexual nature of touching]

- Intentional application of force without consent, there is no requirement to demonstrate
that the accused had a motive of sexual gratification
- In determining the honesty of the accused’s belief, the presence or absence of the
reasonable ground of that belief must be considered… the mistaken belief in consent has to
be honest, but not necessarily reasonable
2) Recklessness or wilful blindness concerning consent [subjective element]:
- Belief that she wanted him to touch her is not a defence… thus a belief that silence, passivity
or ambiguous conduct constitutes consent is a mistake of law and provides no defence
- Total silence or making no objection means they are NOT consenting… unless there is
something communicating consent the presumption is that there is no consent
- R v Sansregret: accused showed violence towards ex-gf and she submitted to sex to pacify
him…held that the accused engaged in self-deception to the point of willful blindness
- 273.2 – reasonable steps requirement: it is not a defence that the accused believed that the
complainant consented to the activity that forms the charge where (a) the accused’s belief
arose from the accused’s self-intoxication or reckless or willful blindness or (b) the accused
did not take reasonable steps, in the circumstances known to the accused at the time, to
ascertain that the complainant was consenting
o Darrach 1998 ONCA:
 The subjective mens rea component of the offence remains largely intact.
The provision does not require that a mistaken belief in consent must be
reasonable in order to exculpate. The provision merely requires that a
person about to engage in sexual activity take ‘reasonable steps… to
ascertain that the complainant was consenting’… were a person to take
reasonable steps, and nonetheless make an unreasonable mistake about
 the presence of consent, he or she would be entitled to ask the trier of fact
to acquit on that basis

Rape Shield Provision:

- S.276(1): in proceedings in respect of sexual assault offences, evidence that the complainant
has engaged in sexual activity, whether with the accused or with any other person, is not
admissible to support an inference that, by reason of sexual nature of that activity, the
complainant:
o A) is more likely to have consented to the sexual activity that forms the subject-
matter of the charge; or
o B) is less worthy of belief
- 276(2) and 276(3): if you want to introduce sexual history of the complainant there must be
a real robust reason why
o R v Barton: error that the trial judge did not comply with s.276 regime which
translated into a ‘failure to expose and properly address misleading evidence and
mistake of law arising from Mr. Barton’s defence’