section 273.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section clarifies that subsection (2) does not restrict situations where consent is not obtained.

SECTION WORDING

273.1(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

EXPLANATION

Section 273.1(3) of the Criminal Code of Canada is a crucial clause as it outlines the fact that the conditions listed in the preceding subsection should not be exclusively interpreted as the only situations in which consent may be non-existent. In other words, this provision of the Code states that there may be other circumstances in which consent may not be obtained and therefore, a sexual act can be considered non-consensual. Subsection (2) of Section 273.1 defines some conditions in which sexual consent is not present, including situations where the victim is incapable of giving consent because of their age, mental or physical disability, or is in a state of unconsciousness or intoxication. The clause that follows, Section 273.1(3), ensures that this list is not exhaustive and there may be other factors that make consent impossible, such as coercion or force. This provision is essential because it gives the courts flexibility in interpreting the definition of sexual consent. It acknowledges that there are situations in which the victim may not have explicitly refused but was unable to give consent due to various reasons. It allows the courts to evaluate each case individually, taking into account all relevant details that might have impacted the victim's ability to give consent. In summary, this provision serves as a safety net, allowing the courts to hold individuals accountable for sexual acts that might not fit into the specific conditions mentioned in the Criminal Code of Canada. It ensures that the law's principles are applied to a wide range of circumstances to protect individuals from sexual assault and to hold the perpetrators accountable for their actions.

COMMENTARY

Section 273.1(3) of the Criminal Code of Canada is an important provision that further clarifies the concept of consent in sexual assault cases. This section essentially states that subsection (2) of the same section shall not limit the circumstances in which no consent is obtained. In other words, this provision recognizes that there may be situations where consent cannot be given or obtained, regardless of the surrounding circumstances. Subsection (2) of section 273.1 defines when consent is not obtained in a sexual assault case. It states that consent is not obtained where the complainant does not voluntarily agree to the sexual activity in question, where the complainant is incapable of giving consent, or where the accused uses force or threats to obtain the complainant's submission. Subsection (2) is important because it clearly establishes the conditions under which consent can be considered valid. However, subsection (2) only provides a limited framework for understanding consent. There may be situations where consent cannot be given or obtained because of other factors that are not covered by this provision. For example, a person may be unconscious or under the influence of drugs or alcohol and unable to give consent. They may also be coerced or manipulated into consenting without truly understanding the consequences of their actions. Furthermore, there may be power imbalances or other societal factors that make it difficult for a person to give consent freely and without fear of repercussions. This is where subsection (3) comes in. It recognizes that there may be other circumstances in which consent cannot be given or obtained, beyond what is outlined in subsection (2). By explicitly stating that subsection (2) does not limit the circumstances in which no consent is obtained, subsection (3) allows for a more nuanced understanding of consent that takes into account a broader range of factors. This provision is particularly important in the context of sexual assault cases, where consent is often a critical issue. It ensures that courts and legal professionals are able to consider all relevant factors when determining whether or not consent was given. It also helps to protect complainants by recognizing that they may not have been able to give valid consent even if they appeared to do so at the time of the incident. Overall, section 273.1(3) is an important provision that ensures a more comprehensive understanding of consent in sexual assault cases. It recognizes that there may be other factors beyond those outlined in subsection (2) that make it impossible for a person to give or obtain consent. By doing so, it strengthens protections for complainants and ensures that justice is served in cases of sexual assault.

STRATEGY

Section 273.1(3) of the Criminal Code of Canada is a powerful tool for prosecuting sexual assault cases. It allows for a broad interpretation of what constitutes non-consensual sexual activity, and therefore makes it easier for victims to seek justice and for perpetrators to be held accountable. However, there are also strategic considerations to be made when dealing with this section of the Criminal Code. One strategy that could be employed when dealing with section 273.1(3) is to focus on the victim's lack of consent. The section itself specifies that nothing in subsection (2) (which relates to specific forms of non-consensual sexual activity) should be seen as limiting the circumstances in which no consent is obtained. This means that prosecutors can argue that a lack of consent exists even if the situation does not fit neatly within the categories set out in subsection (2). Another strategy is to focus on the victim's perception of the situation. The section specifies that sex without consent occurs when a person does not voluntarily agree to the activity. This means that if a victim did not perceive the sexual activity as consensual, then it was not consensual. This can be particularly relevant in situations where the victim was too intoxicated to give meaningful consent. A third strategy is to rely on the reasonable steps" provision in section 273.2. This provision requires that the accused take reasonable steps to ensure that the victim is consenting to sexual activity. If the accused did not take these steps, then they can still be found guilty of sexual assault even if the victim did not resist or say no. This can be a useful strategy in cases where the victim did not feel able to resist due to fear or other factors. In addition to these strategies, there are also strategic considerations around how to present evidence in court and how to prepare witnesses. In cases where the victim's credibility is likely to be challenged, it may be helpful to present corroborating evidence such as medical records or witness testimony. It may also be useful to work with the victim to prepare them for the emotional and legal challenges of testifying in court. Overall, section 273.1(3) of the Criminal Code of Canada provides a powerful tool for prosecuting sexual assault cases. By focusing on the victim's lack of consent and the accused's failure to take reasonable steps to ensure consent, prosecutors can make it easier for victims to seek justice and for perpetrators to be held accountable. However, there are also strategic considerations to be made when dealing with this section, including how to present evidence and prepare witnesses for court.