In sexual assault cases, two of the most complex and scrutinized legal concepts are consent and mistaken belief in consent. These issues often form the core of the trial, especially when there is no physical evidence or witnesses beyond the complainant and the accused. In Canadian criminal law, the line between consent and criminal liability can be thin—and a mistaken belief defence must meet strict legal standards to be accepted in court.
Understanding how consent is defined and when a mistaken belief defence may apply is essential if you are facing charges of sexual assault or related offences.
What Is Consent in Canadian Criminal Law?
Consent is defined in section 273.1 of the Criminal Code of Canada as the voluntary agreement to engage in the sexual activity in question. It must be:
- Freely given (not obtained through force, fear, fraud, or authority)
- Ongoing (can be withdrawn at any time)
- Specific (applies to the specific act and person involved)
- Informed and conscious (cannot be given when intoxicated to the point of unconsciousness or incoherence)
Silence, passivity, or lack of resistance does not equal consent. The courts focus on what the complainant actually communicated, through words or conduct, at the time of the incident.
When Consent Cannot Be Given
Under section 273.1(2) of the Criminal Code, a person cannot legally consent if:
- They are unconscious
- They are incapable of consenting (e.g., due to extreme intoxication)
- The consent is given by someone else (e.g., parent, spouse)
- The accused abuses a position of trust, power, or authority
- The complainant expresses non-consent through words or conduct
This means that even if the accused believed there was consent, they can still be convicted if the complainant legally could not give it.
What Is the Mistaken Belief in Consent Defence?
The mistaken belief in consent defence allows an accused person to argue that they honestly believed the complainant had voluntarily agreed to the sexual activity. However, this defence is not a free pass—it is limited by strict legal rules under section 273.2 of the Criminal Code.
To raise this defence, the accused must show:
- An honest belief in consent; and
- That the belief was based on the complainant’s words or conduct.
Importantly, the belief cannot be based on self-induced intoxication, recklessness, or wilful blindness. The accused must have taken reasonable steps to ensure there was consent.
What Are “Reasonable Steps” to Confirm Consent?
The law requires that the accused take reasonable steps, in the circumstances, to confirm that the complainant was consenting. What counts as “reasonable” depends on the situation, but courts generally look for:
- Clear verbal or physical signals of agreement
- Ongoing communication throughout the encounter
- Responses to changes in activity or setting
- Consideration of the complainant’s capacity to consent (e.g., level of intoxication)
Failure to take reasonable steps will likely result in the mistaken belief defence being rejected by the court—even if the accused sincerely believed there was consent.
What Happens in Court?
In a sexual assault trial where consent is the key issue, the Crown must prove beyond a reasonable doubt that there was no consent and that the accused did not have an honest, reasonable belief in consent.
The defence may argue:
- The complainant provided clear signals of agreement
- There was a prior consensual relationship
- The accused asked for and received verbal or non-verbal confirmation
- There was no expression of refusal or withdrawal
However, the judge will closely examine the context, including the credibility of both parties, any power imbalance, and whether the accused’s belief was based on reasonable grounds.
Can Prior Sexual History Be Used?
Under the “rape shield” provisions in section 276 of the Criminal Code, an accused cannot use the complainant’s prior sexual history to imply consent or challenge credibility, unless specific legal criteria are met. Even then, the judge must approve the evidence in advance through a special application.
This means the mistaken belief defence cannot rely on:
- Assumptions based on past sexual activity
- Relationship status alone
- Stereotypes about how a “real victim” would behave
This legal framework protects complainants from unfair scrutiny while ensuring the accused has a fair trial.
Why This Defence Is So Controversial
The mistaken belief defence has been at the centre of public and legal debate for decades. Critics argue that it can be misused by accused persons who ignore clear signals of non-consent. Supporters point out that not every misunderstanding is criminal, and the law must account for human error when no force or threats were involved.
Courts must strike a careful balance between respecting the rights of complainants and ensuring the presumption of innocence for the accused.
Legal Help Is Essential in These Cases
Cases involving consent and mistaken belief are legally and emotionally complex. The stakes are high: a conviction can result in jail time, mandatory registration as a sex offender, and long-lasting damage to your reputation. A successful defence requires deep knowledge of sexual assault law, trial strategy, and the ability to challenge the credibility of the Crown’s case.
If you are facing charges where consent is in question, you need experienced legal representation as early as possible.
Schedule a Free Consultation with LichtmanLaw
If you’ve been charged with a sexual offence and believe the encounter was consensual, don’t try to defend yourself without expert legal support. The law on mistaken belief in consent is narrow, technical, and unforgiving. Let us help you build a strong defence.
Contact us now to schedule a free, confidential consultation.