First Base, Second Base, Third Base, Home

In Canada the rules of sexual engagement are precise. You cannot have sexual relations with another person without their consent. This means that at every stage of a sexual encounter you need to ensure that your partner is consenting to the sexual act being performed or attempted to be performed. 

Yes, this does mean that a man who is kissing a woman deeply and passionately with her consent must obtain consent to then move his hands, for example, onto her breasts. For this act to be legal, the breast touching, there must be some form of “communicated consent”. Absent this consent you have committed a sexual assault. The law of course is not gender specific, the same applies to a woman kissing a man. Before she moves her hands say, onto his buttocks, she must be satisfied that her partner is in fact consenting to this. There is no “implied consent” in Canada. 

See for example R. v. M (ML) 1994 Canlii 77 –”The majority of the Court of Appeal was in error in holding that a victim is required to offer some minimal word or gesture of objection and that lack of resistance must be equated with consent.”

Furthermore, the Criminal Code requires a positive step be taken to ascertain consent s.273.2(b)(c):

It is not a defence … that the accused believed that the complainant consented … where … 

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

The law says: before you go to second base you need permission to leave first. 

Under this backdrop that following case is worth noting; R. v. JC 2021 ONCA 131 where the trial judge disbelieved the accused because:

I found JC’s evidence suspect that on each and every occasion when he and HD had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “at each progressive stage of the sexual encounters”. Defence counsel contended that there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe JC’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed.

 JC wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold. It seemed excessively rehearsed and staged, as he specifically turned to give this answer directly to me. 

So according to the trial judge the accused should not be believed because his actions did not accord with normal human behaviour, or “common sense”. The problem with this reasoning is that the accused did exactly what was required of him by law; request consent at each progressive stage. How can he be faulted for doing that? The Ontario Court of Appeal said the trial judge erred because it was improper to stereotype how normal sexual encounters unfold. Since the law requires “progressive consent”, it is only natural to positively ensure that permission has been granted before advancing further.