INTRODUCTION AND BRIEF DESCRIPTION
The general definition of consent is set out in section 265 of the Criminal Code. Section 153.1(2) specifically modifies the definition of consent as it pertains to the offence listed at section 153.1 of the Criminal Code, specifically, sexual exploitation of a person with a disability. Reference should be had to subsection 153.1(3) and 153.1(4) which set further limitations on situations in which no consent is obtained. This general maxim, that "consent" is obtained by the "...voluntary agreement of the complainant to engage in the sexual activity in question" must be resorted to cautiously. A person with a disability may or may not have the capacity to consent. Accordingly, an ostensibly "voluntary" agreement may in fact not be "voluntary" if the person is not operating with full capacity.
Section 153.1 is a section that will be looked at by a court with its underlying purpose in mind: to protect persons with a disability from being exploited. Notably, persons with a mental disability can and do have the capacity to consent, but it will be looked at on a case by case basis. Inherent in many relationships where one party suffers from a disability, is often a power imbalance. Thus, this section calls upon the court to determine the meaning of "voluntary" in the context of who the purported consent emanates from. In situations where the court finds that factual consent was not obtained, the accused may have resort to the law of honest but mistaken belief in consent, which is further set out in sections 153.1(5) and 153.1(6) of the Criminal Code.
QUESTIONS AND ANSWERS
The short answer is yes. However, it will depend greatly on their cognitive abilities. A person who is incapable of processing the necessary information relevant to making an informed decision about consent, will not be deemed to have consented at law, despite an otherwise apparent outward agreement. However, the law is also not situated to prohibit people who have mental disabilities from engaging in sexual activities. Thus, section 153.1 sets out a series of definitions, which modify the standard definitions, and enable the Court to determine consent on a case by case basis. The overarching purpose of section 153.1 and its companion sections is to ensure that persons with disabilities are not preyed upon or taken advantage of by those with greater mental faculties, while at the same time striking a balance with a persons right to engage in consensual sexual activity.
Where is the basic definition of consent found in the Criminal Code?