Generally, "consent" at law means the voluntary agreement of a person to engage in a particular act. The term "consent" is further defined, in the negative, in the Criminal Code of Canada at section 265 as follows:

265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

HONEST BUT MISTAKEN BELIEF

When determining whether consent has been obtained, the Court first looks to the subject of the act an inquires whether there is consent in fact, and then whether there is consent at law. If neither is apparent, an accused may still absolve themselves of criminal culpability by arguing that despite the absent of consent, they had an honest but mistaken belief in consent. This term of art is also defined in section 265 of the Criminal Code as follows:

265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accuseds belief, to consider the presence or absence of reasonable grounds for that belief.

COMMON LAW

These codified definitions are further defined by a breadth of case law, which examine, on a case by case basis, situations in which consent is valid, and situations in which consent is vitiated. For example, the consent of an intoxicated person may be held to be invalid. However, to what extent does a person need to be intoxicated for said consent to be considered invalid? The nuances and infinite situations in which a legal analysis of consent arises mandate that a person consult with a criminal lawyer to determine where the specifics of their case lie.

MODIFICATIONS

There are other sections of the Criminal Code that modify the common law and statutorily codified definition of consent. They are beyond the scope of this article. Further reading can be found at section 153.1(2) of the Criminal Code of Canada.