Criminal Code of Canada - section 273.1(2) - Where no consent obtained

section 273.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

No consent is obtained if there is agreement expressed by someone else, the complainant is incapable of consenting, the accused abuses a position of trust, the complainant expresses lack of agreement, or the complainant expresses lack of agreement to continue.

SECTION WORDING

273.1(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

EXPLANATION

Section 273.1(2) of the Criminal Code of Canada provides a detailed definition of consent. This section outlines the circumstances in which consent cannot be obtained, which is crucial in the context of sexual offences such as sexual assault and sexual misconduct. Firstly, the section specifies that consent is only valid if it is directly expressed by the complainant, and cannot be given by anyone else on their behalf. This places a great deal of importance on ensuring that any sexual activity is only initiated by clear verbal or non-verbal affirmations of agreement from the person involved. Secondly, the section notes that where the complainant is incapable of consenting due to factors such as their age, mental capacity, or intoxication, any sexual activity that takes place is automatically classified as non-consensual. Thirdly, the section identifies the specific situation in which an accused person can be said to be abusing a position of trust, power or authority in order to gain the consent of the complainant. This offers protection for people who may have been coerced or manipulated into engaging in sexual activity due to the power dynamics of their relationship. Fourthly, where the complainant has expressed a lack of agreement through their words or conduct, no consent is considered to have been given. This means that any sexual activity which continues after the point when the lack of agreement is expressed is non-consensual. Finally, it is worth noting that even if the complainant has given initial consent, they are free to withdraw it at any time for any reason. If they do so, any further sexual activity that takes place is considered to be non-consensual. In summary, section 273.1(2) is an important aspect of Canada's Criminal Code as it provides a comprehensive definition of what constitutes consent in the context of sexual offences. This helps to ensure that victims of sexual assault or misconduct are protected and that perpetrators are held accountable for their actions.

COMMENTARY

Section 273.1(2) of the Criminal Code of Canada provides clear and concise guidelines on when consent is not obtained in regards to sexual activity. The language used in this section ensures that individuals are protected from sexual activity where consent is not freely and clearly given. This section outlines five scenarios where consent is not obtained. The first scenario, stated in 273.1(2)(a), highlights the fact that consent cannot be obtained through the words or actions of someone other than the complainant. This is an important aspect of consent because it emphasizes that only the individual involved in the activity is able to give or withhold consent. This takes into account situations where someone may be pressured or coerced into engaging in sexual activity by a third party. The second scenario, stated in 273.1(2)(b), involves incapacity to consent. This covers situations where a person is under the influence of drugs or alcohol, or if they have a mental health condition that affects their ability to understand and give informed consent. By including this, the Criminal Code recognizes the importance of a person's capacity to fully and clearly understand the implications of sexual activity before they consent. The third scenario, stated in 273.1(2)(c), relates to situations where an accused abuses their power, trust, or authority to coerce someone into engaging in sexual activity. This recognizes that consent cannot be obtained if a person in a position of power actively seeks to use their influence to pressure or coerce someone into sexual activity. This is important in workplace or other hierarchical settings where power imbalances exist between individuals involved in sexual activity. The fourth scenario, 273.1(2)(d), is about the expression of a lack of consent. This covers situations where a complainant explicitly says no" or shows their unwillingness to engage in sexual activity through their conduct. This clause recognizes that consent cannot be obtained if a person clearly communicates that they do not want to engage in sexual activity. The final scenario, 273.1(2)(e), relates to situations where consent is given but subsequently withdrawn. This clause recognizes that consent must be ongoing and can be revoked at any time through the expression of words or conduct. Overall, this section of the Criminal Code of Canada lays out important guidelines that emphasize the importance of fully informed and freely given consent. The inclusion of these scenarios ensures that individuals are protected from sexual activity that occurs without consent, even when the act may seem consensual on the surface. By putting consent at the forefront, the Criminal Code recognizes that sexual activity is only acceptable when it occurs within clear and consensual parameters.

STRATEGY

When dealing with Section 273.1(2) of the Criminal Code of Canada, there are numerous strategic considerations that legal professionals should bear in mind. These considerations may include the interpretation and application of the section, the reliability of evidence, and the potential ramifications of the case. One strategy that could be employed is to carefully examine the language and the specific elements of Section 273.1(2) to determine whether a particular case falls within its provisions. This involves analyzing the nature of the sexual activity in question, the capacity of the parties involved, and the use of coercion or abuse of power. By doing so, legal professionals can build a strong argument for their client's innocence or guilt, and anticipate potential lines of attack from the opposing counsel. Another strategy is to assess the strength and reliability of the evidence that supports or challenges the allegations of non-consent. This may involve reviewing witness testimony, analyzing forensic evidence, and evaluating the credibility of the parties involved. By carefully scrutinizing the evidence, legal professionals can identify potential weaknesses or inconsistencies in the opposing party's case, and formulate a persuasive argument that supports their client's position. One additional consideration that legal professionals should bear in mind when dealing with Section 273.1(2) is the potential ramifications of a conviction or acquittal. In cases involving allegations of sexual assault, a guilty verdict can result in serious consequences, including imprisonment, registration on a sex offender registry, and severe damage to the accused's reputation. As such, legal professionals must carefully assess the risks and benefits of fighting the charges, and consider whether alternatives such as plea bargaining or negotiated settlements may be more appropriate. Overall, given the complexity and sensitivity of cases involving allegations of non-consensual sexual activity, legal professionals must take a strategic and nuanced approach to Section 273.1(2) of the Criminal Code of Canada. By carefully analyzing the language and provisions of this section, evaluating the evidence, and weighing the potential consequences of a conviction or acquittal, legal professionals can effectively advocate for their clients' rights and interests.