Evolution of Sex Assault Decisions Regarding ‘Consent’ – Supreme Court of Canada*

There must be evidence to support an ‘honest belief’ that the complainant consented: R v Pappajohn (1980).

An defendant cannot be willfully blind about consent: R v Sansegret (1985).

Consent must be freely given, and ‘implied consent’ is not a defence in sexual assault cases: R v Ewanchuk (1999).

A sexual assault is not just about specific acts or body parts – any assault that is sexual in nature (where the complainant’s sexual integrity is violated): R v Chase (1987).

A defendant is entitled to an acquittal if there is a reasonable doubt because the defendant’s testimony is believable – even if it isn’t believed and the person is probably guilty: R v W.D. (1991).

The historic rules regarding admissibility of evidence concerning a complainant’s other sexual activity were too general, and violated the Charter; however, evidence of this nature is only admissible if tendered for a legitimate purpose that logically supports a realistic defence: R v Seaboyer (1991).

Judges were given a framework for situations where a defendant seeks disclosure of medical, counseling or other third-party records, recognizing a balance between the right to make full answer and defence against personal privacy rights: R v O’Connor (1995).

A formal procedure is mandated for disclosure of third-party records in sexual assault cases: R v Mills (1999).

Upholding the constitionality of the Criminal Code amendments restricting the admissibility of evidence pertaining to a complainant’s sexual history (made in response to the Seaboyer decision) the Supreme Court added that a defendant cannot make misleading suggestions about a complainant: R v Darroch (2000).

A person must be able to consent to have sexual acts performed on them while unconscious, dispelling the ‘myth’ of “advanced consent”: R v J.A. (2011).

*Borrowed in part from a related article in the May 2016 ‘The Canadian Lawyer” magazine.

  • 250-487-7030
  • info@hillsidelaw.ca
  • 346 Ellis Street, Penticton, British Columbia V2A 4L7

A Covid-19 Update

From Hillside Law Inc.

We remain open for business as normal, but our office space is temporarily closed to the public. To contact us, please call 250-487-7030.