section 273.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section defines consent as voluntary agreement for sexual activity in certain sections of the Criminal Code of Canada.

SECTION WORDING

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

EXPLANATION

Section 273.1(1) of the Criminal Code of Canada is a key provision that defines the meaning of consent" in relation to sexual offences under Sections 271, 272 and 273. It states that consent" means the voluntary agreement of the complainant to engage in the sexual activity in question. However, it is important to note that this definition is subject to two key exceptions. Firstly, subsection (2) of Section 273.1 states that a person cannot give valid consent if they are under the influence of drugs, alcohol or any other factors that affect their ability to understand the nature of the sexual activity or the consequences of giving consent. Therefore, if a person is intoxicated or incapacitated, they cannot legally consent to sexual activity. Secondly, subsection 265(3) of the Criminal Code of Canada provides that a person cannot consent to harm or the threat of harm. Therefore, even if a person has given their consent to engage in sexual activity, it is not legally valid if they have been threatened or coerced with violence or the threat of violence. This exception ensures that sexual offences can still be prosecuted when there is an element of coercion or manipulation, even if the victim appeared to have given their consent. Overall, Section 273.1(1) is an essential provision that clarifies the definition of consent" in the context of sexual offences in Canada. By providing a clear and concise definition, it helps to ensure that individuals are held accountable for their actions, and that victims are protected and have their rights upheld.

COMMENTARY

Section 273.1(1) of the Criminal Code of Canada plays a crucial role in determining whether an individual has been sexually assaulted or not. In Canada, sexual assault is one of the most frequently reported violent crimes, with Statistics Canada indicating that sexual assault is the only criminal offence that has shown a consistent increase in incidence rates over the past decade. Therefore, identifying and understanding consent, as defined in this section, is of utmost importance. The section provides a definition of consent and clearly stipulates that it applies to sections 271, 272, and 273 of the Criminal Code of Canada. These sections deal with sexual assault, sexual assault with a weapon or causing bodily harm, and aggravated sexual assault, respectively. The inclusion of this definition in the code has brought about a significant shift in the way sexual assault is viewed and tackled in Canada. Before the introduction of this section, consent was not explicitly defined in law. Instead, it was often regarded as a murky concept, which could be difficult to prove in court. The introduction of this definition has been an essential step forward. The clarity it provides has helped to level the playing field for victims of sexual assault and has made it easier to prosecute offenders. It has also helped in educating the Canadian public on the importance of obtaining a clear and unambiguous agreement before engaging in any sexual activity. The section provides a clear and concise definition of what constitutes consent. According to the definition outlined, consent is only valid when it is given voluntarily and without any coercion or threats. The definition also emphasizes the importance of informed consent. To be valid, consent must be given with an understanding of the nature of the sexual activity in question and any potential risks involved. It is also critically important to note that the complainant must be conscious when agreeing to the activity. However, subsection (2) of the section, which is not included in the definition quoted above, states that there are situations in which the law presumes that an individual has not given consent. These situations include, but are not limited to, when the person is incapable of giving consent due to intoxication, when they are unconscious or when threatened or forced to engage in sexual activity. This section is a clear reminder to the public that consent is not a fixed concept and can be taken away at any time. While the inclusion of this definition in the Criminal Code of Canada is a welcome shift, it is still essential to be mindful of the societal and cultural factors that can lead to sexual assault. Many victims of sexual assault still face significant challenges when it comes to reporting these crimes or seeking justice. This could be due to the fear of not being believed, or the fear of retribution. Therefore, it is essential to continue to educate people on the importance of consent and to create safe spaces for victims to come forward and get the support they need. In conclusion, Section 273.1(1) of the Criminal Code of Canada has been a significant achievement in the fight against sexual assault in Canada. It has provided a clear and concise definition of what constitutes consent and is a valuable instrument in helping to prosecute offenders. However, it is important to remember that societal and cultural factors play a crucial role in sexual assault cases, and we must continue to work to create meaningful change in this area. Only by working together can we hope to eradicate sexual assault and create a safer and more just society.

STRATEGY

Section 273.1(1) of the Criminal Code of Canada is a vital provision in cases dealing with sexual assault, sexual interference, and sexual exploitation. Obtaining consent is crucial in determining whether the sexual activity in question was lawful or not. Therefore, understanding this provision is essential for every lawyer and judge who handles sexual assault cases. There are several strategic considerations and strategies that can be employed when dealing with this section of the Criminal Code. One of the primary strategic considerations when dealing with section 273.1(1) is the interpretation of the term "voluntary agreement of the complainant." This provision implies that consent must be given willingly, without restraint, coercion, or manipulation. A strategy that lawyers and judges can employ in understanding the voluntariness of the complainant's agreement is to look for evidence of external factors that may have influenced their decision. For instance, if the complainant was under the influence of drugs or alcohol at the time of the sexual activity, it may be argued that their agreement was not voluntary. Similarly, if there was a power dynamic between the complainant and the accused, such as a doctor/patient or teacher/student relationship, their agreement may not have been freely given. Another strategic consideration in dealing with section 273.1(1) is that consent must be clear and specific. The accused must have obtained consent for the specific sexual activity in question. If the accused engages in sexual activity that goes beyond what the complainant consented to, they may be charged with sexual assault. It is essential for lawyers and judges to identify the precise activities that the accused has obtained consent for to determine whether the sexual activity was lawful or not. For example, if the complainant has given consent to vaginal intercourse, but not to anal intercourse, the accused cannot perform the latter without facing potential criminal charges. One of the strategies that can be employed when dealing with section 273.1(1) is to investigate the context in which the sexual activity occurred. Lawyers and judges need to consider the circumstances that led to the complainant's consent. For instance, if the accused and the complainant engaged in sexual activity in a public setting, such as a restaurant or bar, it may be argued that the complainant's consent was not genuine. Similarly, if the accused and the complainant were in a long-term relationship, and the sexual activity was consensual before, the accused may argue that the complainant's consent was still valid at the time of the incident. Finally, the reputation of the accused and the complainant could also play a role in determining whether the consent was genuine. Strategies around obtaining evidence regarding the reputation of the complainant or the accused can be important to understand whether there was a trust relationship at the time of the sexual activity. A false accusation against someone who has traditionally led a life devoid of sexual misconduct or a reputation for immoral behavior may be weighed differently than the same accusation against an individual with a different reputation. While concern for a stereotypical consideration of reputation can be a central ethical issue, it is still a valid theme/strategy within the context of sexual assault cases. In conclusion, section 273.1(1) of the Criminal Code of Canada is a crucial provision for determining the lawful nature of sexual activity in cases of sexual assault, sexual interference, and sexual exploitation. When dealing with this section, lawyers and judges need to understand the voluntariness, specificity, and context of the complainant's consent. Given that sexual assault cases rely heavily on non-systematic evidence and victim testimony, the strategies deployed when dealing with this section are crucial. Understanding the various considerations and strategies when dealing with section 273.1(1) can help lawyers and judges determine the validity of consent and ensure justice for all parties.