section 153.1(2)


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


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.


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


Section 153.1(2) of the Criminal Code of Canada provides a definition of "consent" in relation to sexual activity. This section is particularly important as it sets out the legal criteria for determining whether an individual has given their voluntary agreement for sexual activity. In general terms, consent means that an individual has freely and voluntarily agreed to participate in sexual activity with another person. Consent is a crucial element of any sexual relationship or encounter, as it is the legal basis for determining whether that activity is legal or constitutes sexual assault. This section of the Criminal Code defines consent in a fairly broad and open-ended way - it does not provide specific guidelines or criteria for assessing whether a complainant has given valid consent. Rather, it simply states that consent must be voluntary - in other words, freely and without coercion or duress. One potential concern with this definition of consent is that it does not specifically address issues of power dynamics, coercion, or the use of alcohol or drugs. For example, an individual may give verbal consent to sexual activity but feel pressured or coerced into doing so due to their partner's actions or behavior. In addition, the use of alcohol or drugs can complicate the issue of consent. It may be difficult to determine whether an individual was in a state of mind to give valid consent when under the influence, and whether they were capable of understanding the implications of their actions. However, it is important to note that Section 153.1(2) is not the only legal provision that deals with issues of consent. Other sections of the Criminal Code and federal and provincial legislation provide further clarification on issues such as sexual assault, sexual harassment, and workplace discrimination. Overall, Section 153.1(2) of the Criminal Code of Canada provides a useful starting point for defining consent in relation to sexual activity. While it is broad in scope, it provides a clear legal basis for determining whether an individual has given valid consent. However, further clarity and guidance may be needed in specific cases where issues of coercion or impairment are present.


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.



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


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?


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.


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).


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.