Each partner must consent to a sexual activity. This means both people must agree that the activity take place, whether it involves touching, kissing, or any other type of sexual act. The consent must be clear, informed, and given freely. Otherwise, the activity is considered sexual assault.
Consent must be clear
When giving consent, a person can say they’re in agreement with their partner’s actions. They can express their consent through words, an attitude, or actions, like a smile.
A person who says or does nothing isn’t consenting to sexual activity. They don’t have to resist physically in order to show they don’t consent.
Also, the consent must be given by the person involved. It can’t be given by someone else.
Making sure the partner consents
Partners must take reasonable steps to make sure the other person consents, for example, by asking the person if they agree to take part in a sexual activity or asking whether they’re enjoying the activity.
Consent must be given once again before beginning a different sexual activity.
Saying yes to certain sexual activities and no to others
A person can consent to certain sexual activities and not to others. For example, a person can consent to a kiss but refuse to have penetrative sex.
Saying yes, then changing their mind during the sexual activity
A person can change their mind about a sexual activity at any time. As soon as one person refuses, whether through words or actions, the sexual activity must stop.
Consent must be informed and given freely
There are situations where a person’s consent is invalid because it was not informed or given freely. This is the case when a partner feels forced to agree, or if the partner agrees but isn’t aware of certain major risks.
Force or threats
A person’s consent is invalid if they accept to participate in sexual activity because they’re physically forced to or have been threatened.
Authority and abuse of power or abuse of trust
Consent is not valid if someone feels that they must agree to sexual activity because the other person is using their position of authority or trust, their role, or their status. A person might be taking advantage of their position even if they don’t have the actual power to penalize the other person.
Sexual activity with a person in a position of authority or trust is not automatically sexual assault. A person can consent to sexual activity with someone in a position of authority or trust, as long as that person is not abusing their position or influence.
However, members of regulated professions (like doctors, psychologists or nurses) are not allowed to have intimate or sexual relationships with their patients or clients while the professional relationship is ongoing.
Important: different rules apply in the case of teenagers.
Some lies can invalidate consent
A person’s consent is invalid if their partner lies and exposes them to a serious risk of harm or injury. This is the case, for example, if a person living with a sexually transmitted and blood-borne infection (STBBI) doesn’t tell their partner about it and there’s a reasonable risk of transmission. The partner’s consent may be considered invalid in this type of situation.
The same applies if a person lies about using a condom and exposes their partner to a risk of pregnancy.
Important: Experiencing stress or sadness because the other sexual partner lied isn’t enough to invalidate consent. For example, if you agree to have sex with a person who says they’re single, your consent to sexual activity is valid even if you later learn that the person is married.
The partner must be able to consent
A person must be capable of giving consent in order for their consent to be valid. The law provides certain situations where a person’s consent is invalid.
Person who is asleep or unconscious
A person who is asleep or unconscious isn’t able to consent to sexual activity. Their consent is invalid, even if they gave their consent before falling asleep or losing consciousness.
Severe alcohol or drug intoxication
A person’s consent is invalid if they don’t know what they’re doing or if they’re unconscious. For example, no one can consent when they’re blacked out or in an alcohol-induced coma.
However, being under the influence of alcohol or drugs doesn’t automatically mean a person can’t consent, even if they’re impaired. A person can give consent if they’re conscious and understand what sexual activity is being proposed, who their partner is and that they have the choice to say “yes” or “no”.
The ability to consent to sexual activity is assessed on a case-by-case basis. The Criminal Code doesn’t set a specific limit on how much alcohol or drugs makes consent invalid. For one person, a single drink might be enough to impair their ability to consent, while for another, it might take more.
Minimum age for consent
The minimum age to consent to sexual activity is 16. Before age 16, an adolescent can consent to sexual activity if their partner is about the same age. To learn more, see our article Sexual Consent of Teenagers.
Verifying your partner’s consent
A person must always take reasonable steps to make sure their partner consents. This could be, for example, by asking them if they agree to participate in the sexual activity or they are enjoying the activity.
Consent must be given for every sexual act involved. A person who acts without the consent of another person could be charged with sexual assault.