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Criminal Code (R.S.C., 1985, c. C-46)

Full Document:  

Act current to 2020-03-05 and last amended on 2019-12-18. Previous Versions

PART VIIIOffences Against the Person and Reputation (continued)

Assaults (continued)

Marginal note:Meaning of consent

  •  (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

  • Marginal note:Consent

    (1.1) Consent must be present at the time the sexual activity in question takes place.

  • Marginal note:Question of law

    (1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

  • Marginal note:No consent obtained

    (2) For the purpose of subsection (1), no consent is obtained if

    • (a) the agreement is expressed by the words or conduct of a person other than the complainant;

    • (a.1) the complainant is unconscious;

    • (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

    • (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

    • (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

    • (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

  • Marginal note:Subsection (2) not limiting

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

  • 1992, c. 38, s. 1
  • 2018, c. 29, s. 19

Marginal note:Where belief in consent not a defence

 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

  • (a) the accused’s belief arose from

    • (i) the accused’s self-induced intoxication,

    • (ii) the accused’s recklessness or wilful blindness, or

    • (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

  • (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; or

  • (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

  • 1992, c. 38, s. 1
  • 2018, c. 29, s. 20

Marginal note:Removal of child from Canada

  •  (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is

    • (a) under the age of 16 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;

    • (b) 16 years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person;

    • (c) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272 or 273 in respect of that person; or

    • (d) under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 in respect of that person.

  • Marginal note:Punishment

    (2) Every person who contravenes this section is guilty of

    • (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

    • (b) an offence punishable on summary conviction.

  • 1993, c. 45, s. 3
  • 1997, c. 18, s. 13
  • 2008, c. 6, s. 54
  • 2015, c. 29, s. 8
  • 2019, c. 25, s. 98

Marginal note:Corroboration not required

 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

  • R.S., 1985, c. C-46, s. 274
  • R.S., 1985, c. 19 (3rd Supp.), s. 11
  • 2002, c. 13, s. 12
  • 2014, c. 25, s. 16
  • 2019, c. 25, s. 99

Marginal note:Rules respecting recent complaint abrogated

 The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1 and 155, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

  • R.S., 1985, c. C-46, s. 275
  • R.S., 1985, c. 19 (3rd Supp.), s. 11
  • 2002, c. 13, s. 12
  • 2019, c. 25, s. 99

Marginal note:Evidence of complainant’s sexual activity

  •  (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

    • (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

    • (b) is less worthy of belief.

  • Marginal note:Conditions for admissibility

    (2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

    • (a) is not being adduced for the purpose of supporting an inference described in subsection (1);

    • (b) is relevant to an issue at trial; and

    • (c) is of specific instances of sexual activity; and

    • (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

  • Marginal note:Factors that judge must consider

    (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

    • (a) the interests of justice, including the right of the accused to make a full answer and defence;

    • (b) society’s interest in encouraging the reporting of sexual assault offences;

    • (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

    • (d) the need to remove from the fact-finding process any discriminatory belief or bias;

    • (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

    • (f) the potential prejudice to the complainant’s personal dignity and right of privacy;

    • (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

    • (h) any other factor that the judge, provincial court judge or justice considers relevant.

  • Marginal note:Interpretation

    (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

  • R.S., 1985, c. C-46, s. 276
  • R.S., 1985, c. 19 (3rd Supp.), s. 12
  • 1992, c. 38, s. 2
  • 2002, c. 13, s. 13
  • 2018, c. 29, s. 21
  • 2019, c. 25, s. 100
 
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