American Judges Association


Court Review: Journal of the American Judges Association


Wayne K. Gorman

Date of this Version



Court Review - Volume 55


Used by permission.


In Canada, the Criminal Code of Canada, R.S.C. 1985, contains a number of “sexual offences” including the broad and general one of “sexual assault.” The offence of sexual assault has been defined as the touching of “another person in a sexual way without her consent” (see R. v. J.A., [2011] 2 S.C.R. 440, at paragraph 23), in “circumstances of a sexual nature, such that the sexual integrity of the victim is violated” (see R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paragraph 24). Thus, lack of consent is one of the key elements of the offence of sexual assault.

In R. v. Darrach, 2 S.C.R. 443 (2000), the Supreme Court noted that it “is common for the defence in sexual offence cases to deny that the assault occurred…or to claim an honest but mistaken belief in consent” (at paragraph 58).

These two issues, the nature of consent and the defence of mistaken belief in consent, have been recently considered by the Supreme Court of Canada.