section 153.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

The definition of consent as it pertains to a person with a disability as contained in the Criminal Code of Canada.

SECTION WORDING

153(2) Subject to subsection (3), "consent" means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

EXPLANATION

An analysis of section 153.1(2) of the Criminal Code of Canada which sets out the definition of consent as it pertains to a person with a disability

COMMENTARY

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.

STRATEGY

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

Q.

Can a person who is disabled legally consent to sexual activity?

A.

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.

Q.

Where is the basic definition of consent found in the Criminal Code?

A.

Section 265 of the Criminal Code contains the "standard" definition of consent. However, reading the definition on its own is not sufficient. There are thick layers of common law cases that interpret and explain the breadth and limitations of the term consent as it applies to criminal law.

RELATED CASES

The Alberta Court of Queen's Bench analyses section 153.1(2) of the Criminal Code and determines whether the Kienapple double jeopardy principle applies when there are convictions on sexual assault simpliciter (271) and sexual exploitation of a person with a disability (153.1).

RELATED LINKS

Paul Lewandowski is an Ottawa criminal lawyer.
An Ottawa criminal lawyer analyses the definition of consent pursuant to section 265 of the Criminal Code of Canada, as well as some of the other statutory sections that modify the basic definitions.
Ines Gavran is a criminal lawyer in Newmarket, Ontario, who accepts clients charged with sexual offences.

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