The sexual assault trial for five former members of Canada’s World Junior Hockey has begun in London, Ontario. While the identity of the complainant (the term used for the alleged victim) is subject to a publication ban, the substance of the trial is being reported upon. The Crown’ Attorney’s opening statement to the jury provides insight into some of the anticipated evidence and some of the legal issues. It raises a particularly interesting question that may seem basic on its face: what is consent to sexual activity?
Why “Consent” to Sexual Activity may be in Issue in the London Hockey Trial
Whether or not somebody consented to sexual activity is the core question in many sexual assault trials. But according to the Crown’s opening statement in the London Hockey Trial, it seems that the complainant engaged in certain sexual acts because she was: “going along with what the men in the room wanted — what she felt that they expected of her — because she was drunk, uncomfortable, and she did not know what would happen if she did anything else”.
Not all sexual assault takes place when one person is physically forced into sex, or while her or she is verbally trying to stop it. Consent is subjective – meaning it is in the mind of the participant. It must be affirmatively communicated. Not all victims will scream or protest or resist.
But the evidence as previewed in the Crown opening in this London hockey case suggests a subtle distinction may be at play: if a person agrees to engage in sex – not out of desire – but out of a feeling of duty or discomfort or intoxication or fear – is that legally valid consent?
The short answer is that while all of these were indirectly suggested in the Crown’s opening, there is a critical difference between sex that is “agreed to” out of fear versus discomfort versus intoxication.
The language used by the Crown in their opening is interesting because it means they could go in several different directions in trying to prove the accused players’ guilt.
Fear: Consent to Sexual Activity Obtained Due to Fear is Not Consent
Let us begin with the most straightforward factor: fear. The Crown in this case did not explicity use the word “fear”, but seems to allude to it. She makes mention of the number of men in the room, their size, and that the complainant “didn’t know what would happen” if she did not engage in the sexual acts they sought.
What is law on consent to sexual activity obtained by fear? Section 265(3) of the Criminal Code of Canada states:
For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
This provision applies to all assault including sexual assault. Note that subsection (b) says threats or fear of the application of force. So if the Crown can prove beyond a reasonable doubt that consent was absent because any consent that was given was obtained by “fear of the application of force”, they can prove, prima facie, sexual assault.
Of course, whether or not any consent given (if it was given) was in fact obtained due to fear of physical force may well be in contention. The things said and done (or not said and done) by the accused or the other men in the room may be an important factor for the jury in deciing whether consent was actually obtained by fear of force or not.
Discomfort or Duty: Is “Going Along” with What Somebody Else Want Consent?
The Crown says the complainant engaged in the sexual activities, at least in part, because she was “going along with what the men wanted … what she felt they expected of her”.
It is unclear what the complainant’s evidence will be in this respect. What was in her mind. And whether she “agreed” to sexual activity and why. But there is at least some suggestion that she may have felt inclined to engage in the sexual activity to please others – rather than because she really truly wanted that for herself.
This is where things get tricky. Fear of consequences aside, if somebody agrees voluntarily to engage in sex with another simply to please that other person, or to “get it over with”, are they legally consenting, or not?
Some caselaw sheds some light onto this question:
In a case called R. v. S.M., 2019 ONSC 7073, Justice Dawes wrote, at para. 91:
Although G.C. testified that he never wanted to have sex with S.M., the subjective mental state of consent under Ewanchuk is not synonymous with “subjective desire”. People can consent to do something they would rather not to do if they decide, on balance, that the reward they will get for doing the thing outweighs their subjective preference not to do it.
In a case called R. v. Shimizu, [2010] O.J. No. 5821, Justice Croll wrote:
35 I also note that while S.C.G. stated she did not consent to the sexual activity in question, it may be that she was confusing, through no fault of her own, the legal term “consent” with the more colloquial use of the word akin to a wish or a want. In both Ewanchuk, [1999] S.C.J. No. 10, and Davis, [1999] S.C.J. No. 67, the Supreme Court of Canada referred to the Glanville Williams Textbook of Criminal Law, a text in which the following legal definition of consent can be found:
Consent is hard to define. To consent to do something and to wish or want to do it are not the same. I may consent to visit my great uncle George when I decidedly do not want to go. I go complaining because he wants to see me, because I am told I must go by someone I don’t want to offend, because I feel I ought to go, because I have some faint hope of benefiting myself from the visit and so on. As I keep telling you, I do not want to go, but I consent to go. Every one who goes consents to go unless he is Shanghaied or goes at pistol point or is tricked by being told that he is going somewhere else. I think that every reader will recognize this as a statement on the way in which we use the word “consent,” yet I have not succeeded in giving a positive content to the word.
36 Many decisions that we take in life are the results of choosing between evils. We opt for one course, which we dislike because the alternative course is more objectionable still. This unpleasantness of choice does not, in ordinary language, destroy the reality of the choice or the existence of consent.
37 In this case, S.C.G., on her own evidence, stated that she drank the vodka she was offered even though she did not want to, because she wanted to avoid an uncomfortable situation. She did not want to be rude. She acknowledged that it was possible that, like taking the vodka, she might have kissed Mr. Shimizu back in order to avoid an awkward situation. She knew that Mr. Shimizu could further her career. It is not inconceivable that she consented to the sexual activity for these reasons as well.
And in a case called R. v. B., Justice Lai wrote:
While the presence of passionate intimacy, sexual attraction or commercial transaction may underlie consent to sexual activity, their absence does not necessarily negative consent. Setting aside passion, commerce and sexual attraction, there are a myriad of reasons for consent to sexual activity, among them, pity, duty, obligation, curiosity, boredom or quest or oblivion or escape, however fleeting.”
The takeaway is that consent must be completely voluntary in the mind of the consenting party. But the motivation behind that voluntary agreement need not be “desire” per se. If it is to please somebody else or for some other less-than-ideal motivation, that consent may be consent nonetheless.
Intoxication: Is Drunken Consent to Sexual Activity Consensual or Sexual Assault?
The Crown mentions that the complainant went along with what the men wanted, in part because “she was drunk”.
It is possible, certainly, for a person to be too intoxicated to legally consent to sexual activity. Read more about that here. But the important thing to know is that the bar for incapacity to consent is quite high. A person must be intoxicated to the point they are incapable of understanding: (1) the physical act; (2) the sexual nature of the act; (3) who it is they are engaging in the sexual act with, or; (4) that they are allowed to refuse to participate.
It is not clear if the evidence will leave open a possible finding that the complainant was too intoxicated to be able to legally consent. But the way it is raised in the Crown’s opening suggests otherwise. It suggests that they may point to her inebriation as a factor in her participating in sex to which she did not subjectively consent in the moment.
Last Defence: Honest Mistaken Belief in Consent to Sexual Activity
It is worth mentioning that there is a defence, in law, called mistaken belief in communicated consent. This defence may be in play in this London hockey trial. This is the defence that even if in her mind the complainant was not truly consenting to sex, that the accused all thought she was consenting, took reasonable steps to assure themselves that she was consenting, and that their mistaken belief was a reasonable belief.
It is not prudent at this stage to speculate about anything that may take place in this particular trial.
It may be of interest to those following the case, however, to understand the law on these topics as they relate to sexual assault so that they can follow along without relying on misconceptions or a misunderstanding of the law.