INTRODUCTION AND BRIEF DESCRIPTION
Belief in consent is not a defense if it arose from intoxication, recklessness, or failure to take reasonable steps to ascertain consent.
SECTION WORDING
153.1(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
EXPLANATION
Section 153.1(5) of the Criminal Code of Canada specifies that an accused person cannot use the defence of believing that the complainant consented to the activity that forms the subject-matter of the charge in cases where the accused was intoxicated or acted recklessly or with wilful blindness. It also prohibits this defence if the accused did not take reasonable steps to ascertain whether the complainant was consenting. This section has been added to the Criminal Code of Canada to address the issue of sexual assault, particularly in cases where consent is unclear. It aims to eliminate any discrepancies in interpreting the concept of consent by putting the onus on the accused to take reasonable steps to ascertain whether the complainant has given their consent. Furthermore, it recognizes that an accused's belief in consent can be clouded by various factors, such as intoxication, recklessness, or wilful blindness, which can lead to a mistaken belief that the complainant has given their consent. These factors are therefore not accepted as valid reasons for the belief in consent. Overall, the purpose of Section 153.1(5) is to ensure that consent is understood as a clear and unambiguous agreement between two parties and to protect victims of sexual assault by providing a legal safeguard against the exploitation of a mistaken belief in consent.
COMMENTARY
Section 153.1(5) of the Criminal Code of Canada states that a belief in consent is not a defense for a charge under this section if the accused's belief is due to self-induced intoxication, recklessness, or wilful blindness. Additionally, if the accused did not take reasonable steps to ascertain that the complainant was consenting, a belief in consent also cannot be used as a defense. This section of the Criminal Code of Canada is essential because it eliminates potential loopholes that could be used by those accused of sexual assault. A belief in consent cannot be used as an excuse if the accused was under the influence of drugs or alcohol or was acting recklessly. The burden of ensuring consent is on the accused, and if they fail to take reasonable steps to ascertain that the complainant was consenting, they cannot use a belief in consent as a defense. The language used in this section of the Criminal Code of Canada is crucial in ensuring that cases of sexual assault are judged fairly and justly. It is a common misconception that sexual assault only occurs when there is a clear lack of consent. Many cases have been reported where the accused genuinely believed that the encounter was consensual. However, this belief is not a sufficient defense since it places the burden of consent on the accused, not the complainant. Furthermore, this section of the Criminal Code of Canada is necessary in preventing cases of sexual assault where self-induced intoxication is involved. Alcohol and drug use can impair judgment, making consent harder to ascertain. If the accused was intoxicated and failed to confirm consent, a belief in consent cannot be used as a defense. Recklessness and wilful blindness are also included in this section of the Criminal Code of Canada. Recklessness occurs when the accused disregards the risk that the sexual activity may not be consensual. Wilful blindness occurs when the accused intentionally avoids confirming consent, understanding that doing so would expose the lack of consent. These actions demonstrate a complete disregard for the significance and importance of consent, and thus a belief in consent cannot be considered a defense. In conclusion, Section 153.1(5) of the Criminal Code of Canada is necessary in ensuring that cases of sexual assault are judged fairly and justly. It places the burden of ensuring consent on the accused, rather than the complainant, and eliminates potential loopholes that could be used as defenses. Sexual assault is a serious offense, and it is essential to have stringent laws in place to protect the victims and ensure that justice is served.
STRATEGY
Section 153.1(5) of the Criminal Code of Canada is a provision that can have a significant impact on an accused person's defence in a sexual assault case. This provision essentially removes the defence of mistaken belief in consent if the accused person's belief arose from self-induced intoxication, recklessness, or wilful blindness, or if the accused did not take reasonable steps to ascertain that the complainant was consenting. This means that in cases where this provision is applicable, the accused person cannot use their belief in consent as a defence, regardless of the circumstances. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. One of the main considerations is the strength of the prosecution's case. If the prosecution has strong evidence of sexual assault, such as eyewitness accounts, DNA evidence, or a confession, it may be difficult to mount a defence even without section 153.1(5) applying. In such cases, the accused person's best strategy may be to negotiate a plea deal with the prosecution in order to minimize their sentence. Another important strategic consideration is the accused person's own conduct leading up to the sexual assault. If the accused person consumed drugs or alcohol prior to the assault, this may be used against them in court, especially if they were visibly intoxicated or took drugs voluntarily. In such cases, the accused person's defence may focus on establishing that they did not realize that the complainant was not consenting, rather than arguing that they believed the complainant was consenting. When section 153.1(5) of the Criminal Code of Canada applies, there are several strategies that could be employed. One possible strategy is to challenge the constitutionality of the provision itself. This could involve arguing that the provision violates the accused person's rights under the Canadian Charter of Rights and Freedoms, such as the right to a fair trial or the right to be free from cruel and unusual punishment. However, such arguments may be difficult to make, as the provision has been upheld by courts in several cases. Another strategy that could be employed is to challenge the prosecution's evidence of non-consent. This could involve arguing that there were no signs that the complainant was not consenting, such as physical resistance or verbal objections. Alternatively, the accused person could try to argue that the complainant did in fact consent, but later changed their mind or falsely accused the accused person of sexual assault. Overall, dealing with section 153.1(5) of the Criminal Code of Canada requires careful consideration of the facts of the case and the strength of the prosecution's evidence. In cases where this provision applies, the accused person may need to focus on alternative defences, such as arguing that they did not realize that the complainant was not consenting, or negotiating a plea deal with the prosecution.