Sexual offences and the law of consent

Desjardins begins the second part of the course with a case that has not yet gone to trial. On Tuesday, March 10, 2026, a twenty-year-old student named Sofia Reyes walked into the Port Ardent police service's front office with her friend Maya Desai and said she wanted to report a sexual assault. It had happened three nights earlier, after a party. She remembered some things clearly and others not at all. She was not sure she wanted to go through with a report, but Maya had told her that talking to someone could not hurt. 'What the officer at the front desk said in the next two minutes,' Desjardins tells the class, 'decided whether this case would exist. We will come back to what he said. First, the law.'

Brooks adds a note about language before they begin. Police and courts use the word complainant for the person who reports a sexual offence, because the law has not yet decided what happened. Victim services and many survivors prefer victim or survivor. The course will use all three, depending on context, and the students should be ready to explain why the legal word does not mean the officer doubts the person. She also reminds them that the supports listed on the course page are there for them. 'This part of the course is hard for many people. Look after yourselves.'

The sexual assault offences

Canada's Criminal Code replaced the old offences of rape and indecent assault in 1983 with a single offence of sexual assault, in three levels. Sexual assault under section 271 is an assault, as defined in section 265, committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The test is objective: whether, viewed in the light of all the circumstances, the sexual or carnal context of the assault is visible to a reasonable observer. It covers a wide range of conduct, from unwanted sexual touching to forced intercourse. Sexual assault is a hybrid offence. On indictment it carries a maximum of ten years, or fourteen if the complainant is under sixteen, and the Protecting Victims Act raised the maximum on summary conviction to two years less a day. Section 272 covers sexual assault with a weapon or threats to use one, with threats to a third person, causing bodily harm, or in which the accused chokes, suffocates or strangles the complainant, and section 273 covers aggravated sexual assault, which involves wounding, maiming, disfiguring or endangering life. Separate offences protect children, including sexual interference and invitation to sexual touching for those under sixteen, under sections 151 and 152.

What consent means

The heart of most sexual assault cases is consent. Section 273.1 defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question, and since 2018 it has said expressly that consent must be present at the time the sexual activity occurs and that the question of whether no consent was obtained is a question of law. Section 273.1(2) lists circumstances in which no consent is obtained: where the agreement is expressed by someone other than the complainant; where the complainant is unconscious; where the complainant is incapable of consenting for any other reason, such as extreme intoxication; where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; where the complainant expresses, by words or conduct, a lack of agreement; and where the complainant, having consented, expresses by words or conduct a lack of agreement to continue. Consent can be withdrawn at any time.

The Supreme Court of Canada has shaped this law in several important decisions. In R. v. Ewanchuk (1999), the Court held that there is no defence of implied consent: the question is whether the complainant, in her own mind, wanted the sexual touching to take place, and a lack of resistance or silence is not consent. In R. v. J.A. (2011), the Court held that a person cannot consent in advance to sexual activity that takes place while they are unconscious, because consent must be ongoing and the person must be capable of revoking it. In R. v. Barton (2019), the Court emphasized that trials must be free of myths and stereotypes about complainants. In R. v. Kirkpatrick (2022), it held that where a complainant agrees to sexual intercourse only with a condom, the use of a condom is part of the sexual activity in question, so intercourse without one is not consented to. Desjardins tells the class that whatever the formal definition, the evidence questions are the same: what the complainant agreed to, whether they were capable of agreeing, what force or pressure was used, and what the accused knew.

Mistaken belief in consent

An accused may argue that they honestly but mistakenly believed the complainant consented. Section 273.2 sharply limits this defence. It is not available if the belief arose from the accused's self-induced intoxication, recklessness or wilful blindness; if the accused did not take reasonable steps, in the circumstances known to them at the time, to ascertain that the complainant was consenting; or if there is no evidence that the complainant's voluntary agreement was affirmatively expressed by words or actively expressed by conduct. The belief must be that the complainant said yes, by words or conduct, not that she failed to say no. A belief based on myths, such as the idea that a person's earlier sexual activity, clothing or flirting means consent, is a mistake of law and is no defence. Investigators should therefore gather evidence about what the accused saw, heard and did: whether the complainant was slurring, stumbling, vomiting or falling asleep; whether others warned the accused; and what the accused said afterward.

# Age-based rules, simplified for illustration (always check the full statute and exceptions)
def ca_age_rule(complainant_age, partner_age, position_of_trust=False):
    if complainant_age >= 16 and not position_of_trust:
        return "age not a bar (consent still required)"
    if position_of_trust and complainant_age < 18:
        return "no valid consent: position of trust, authority or dependency"
    gap = partner_age - complainant_age
    if complainant_age in (14, 15) and gap < 5:
        return "close-in-age exception may apply"
    if complainant_age in (12, 13) and gap < 2:
        return "close-in-age exception may apply"
    return "no valid consent: under the age of consent"

def oh_age_rule(victim_age, offender_age):
    if victim_age < 13:
        return "rape 2907.02(A)(1)(b) if sexual conduct"
    if 13 <= victim_age <= 15 and offender_age >= 18:
        gap = offender_age - victim_age
        return "unlawful sexual conduct with a minor 2907.04" + (" (misdemeanor: gap under four years)" if gap < 4 else " (felony)")
    return "age not a bar (other elements still apply)"

for a, b in ((15, 19), (15, 22), (13, 14), (17, 30)):
    print("ca", a, b, "->", ca_age_rule(a, b))
for a, b in ((15, 18), (15, 24), (12, 15)):
    print("oh", a, b, "->", oh_age_rule(a, b))

ca 15 19 -> close-in-age exception may apply
ca 15 22 -> no valid consent: under the age of consent
ca 13 14 -> close-in-age exception may apply
ca 17 30 -> age not a bar (consent still required)
oh 15 18 -> unlawful sexual conduct with a minor 2907.04 (misdemeanor: gap under four years)
oh 15 24 -> unlawful sexual conduct with a minor 2907.04 (felony)
oh 12 15 -> rape 2907.02(A)(1)(b) if sexual conduct

The example simplifies the rules, which have more exceptions and conditions than a few lines of code can show. Desjardins uses it to make one point: in Canada the general age of consent is sixteen, with close-in-age exceptions for fourteen- and fifteen-year-olds and for twelve- and thirteen-year-olds, and no exception where the older person is in a position of trust or authority, in which case the age is eighteen. Officers should check the statute every time.

Myths and stereotypes

Sexual assault cases are especially vulnerable to myths and stereotypes about how a real victim behaves. Some of the most persistent are that real victims report immediately; that they fight back and are injured; that they are visibly distressed afterward; that they are assaulted by strangers; that they do not have further contact with the accused; that they remember events clearly and in order; that intoxication means they share responsibility; and that their clothing, past sexual history or relationship with the accused makes consent more likely. Research and experience show that none of these is reliable. Most sexual assaults are committed by someone the victim knows. Most victims do not report at all, and those who do often delay. Many freeze rather than fight, and most have no visible physical injury. Many continue some contact with the accused, especially when they share friends, classes or a workplace. Memory of a traumatic event is often fragmented, as Lesson 7 explains.

Canadian law has acted against these myths directly. In R. v. Seaboyer (1991), the Supreme Court of Canada identified the twin myths: that because of their sexual history, complainants are more likely to have consented or are less worthy of belief. Section 276 now prohibits evidence of the complainant's other sexual activity for either purpose, and allows it for other purposes only after a hearing. Section 275 abolished the old rules about recent complaint, and courts have repeatedly held that delay in reporting cannot by itself support an inference that a complaint is false. Brooks tells the class that the myths are not only a problem in courtrooms. They shape what officers notice, which questions they ask, and whether they believe the person in front of them. 'If you catch yourself thinking that she did not act like a real victim, stop. There is no such thing.'

Reporting and the first response

Sexual assault is one of the most underreported crimes. Statistics Canada's General Social Survey on Victimization has found that only about six in every hundred sexual assaults experienced by Canadians are reported to police. Victims give many reasons for not reporting: shame and self-blame; fear of not being believed; fear of the accused or of consequences for relationships, school or work; not being sure what happened was a crime; wanting to forget; and distrust of the police and courts. How the first officer responds has a large effect on whether a victim continues with a report, and on whether they ever report anything again.

At the front desk, Constable Ryan Teague listened to Sofia's first few sentences, then said, 'Thank you for coming in. I'm sorry this happened. You can take as much time as you need, and you're in control of what happens next. I'd like to get you somewhere private and have a detective from our sexual assault unit speak with you, if that's all right.' He took her and Maya to the soft interview room, offered water, and asked only for the basic information he needed: whether she was safe now, whether she needed medical care, roughly when and where it happened, and whether the person who did it knew where she lived. He did not ask for details. He told her that a forensic examination might still be possible, that it was her choice, and that the hospital could hold evidence even if she had not decided whether to proceed. Desjardins says Teague did everything right. 'His job was not to investigate. His job was to make sure there could be an investigation.'

The facts of the Reyes case

Sofia told Detective Sergeant Mendes, in an interview later that afternoon, that she went to a party on Saturday, March 7, at a house on Lakeview Avenue rented by four students, including Brandon Lowe, twenty-two, whom she knew from a class. She drank more than she usually did. By about half past one, Maya saw that Sofia could barely stand and wanted to take her home, but Brandon said Sofia could sleep it off in his room and he would 'keep an eye on her.' Maya left at about two. Sofia's next memory was of waking, unable to move properly, with Brandon on top of her, and then nothing until she woke at about six with her clothing disarranged. She left the house without speaking to anyone. At 11:42 that morning, Brandon sent her a message: 'hey sorry about last night, you were pretty out of it lol. we good?' She did not reply.

Sofia's account, if accepted, describes sexual activity with a person who was unconscious or incapable of consenting, in which case section 273.1(2) says no consent was obtained, and Brandon's message is evidence of what he knew about her condition. He was charged with sexual assault under section 271 on April 21, 2026. The trial is scheduled for January 2027 in the Superior Court of Justice. Lessons 7 through 10 follow the investigation and the pretrial process. The trial has not yet taken place, and Desjardins reminds the class that Brandon Lowe is presumed innocent.