Consent
Section 265(3) Criminal Code deals with consent at least in assault. While consent is a defence in assault, the defence of consent fails when obtained by fraud, by force, by threats or fear of force being applied to the person consenting or another person, by the exercise of authority.
In the context of sexual assault, consent must be from the person themselves who is of sound mind, free of fear of threats or fear for one’s safety, not incapacitated, underaged (under the age of 16 years) or unconscious. Consent must not be obtained by abuse of one’s position, power, trust or authority. Not have been given as a result of being tricked or deceived about a material fact is another factor in free and informed consent. A person cannot grant consent (while conscious) for sexual activity or sexual conduct to take place when they are unconscious.
In sports, competition and consensual fights, consent is a valid lawful excuse for assault unless it causes abnormal bodily harm. Charges of minor assaults can be laid off on the lawful excuse of implied consent. However, this cannot extend to serious assaults or sexual assaults.
Intoxication does not blindly invalidate a consent. Even in sexual assault context, intoxication does not blanketly invalidate a consensual sex. The facts are subjectively decided on a case by case basis.
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