Express Consent vs. Implied Consent

Think you had “implied consent”? In Canadian sexual assault law, that’s not a defence—it’s a fast track to conviction. Consent must be clear, active, and continuous. 

Important Things to Know:

• Only express consent is legally valid: Canadian law recognizes only express consent—clearly communicated through words or unmistakable actions. Implied consent has no place in sexual assault cases.

• Consent must be ongoing and revocable: Past relationships, previous encounters, or passive participation don’t count. Consent must exist at every stage of the sexual activity—and can be withdrawn at any time.

• Silence ≠ consent: A lack of “no” doesn’t mean “yes.” Courts require affirmative, voluntary agreement. The onus is on you to confirm consent is present and maintained.

• Supreme Court has drawn a clear line:

• • R. v. Ewanchuk (1999): Implied consent is not a defence.

• • R. v. J.A. (2011): Consent must be given at the time of the activity—advance consent while unconscious is invalid.

• “Honest but mistaken belief in communicated consent” is a narrow defence: To use it, you must show your belief was both genuine and reasonable, and that you took active, “reasonable steps” to confirm consent.

• • Reasonable steps:

• • • Asking for verbal consent before and during activity

• • • Checking in if there’s uncertainty

• • • Stopping at any sign of discomfort

• • Not reasonable:

• • • Assuming based on past sex, flirting, or lack of resistance

• • • Ignoring ambiguity or relying on body language alone

• Intoxication complicates everything: If the complainant is incapacitated due to alcohol or drugs, they cannot legally give consent. Proceeding anyway is legally risky and could lead to conviction.

Misunderstanding the difference between express and implied consent—or assuming you “knew” what your partner wanted—can lead to sexual assault charges. Continue reading for a breakdown of what actually counts as consent under Canadian law—and how misunderstanding it can cost you everything. 

 

How does the Criminal Code define consent?

Understanding consent in Canadian law begins with Section 265 of the Criminal Code, which defines assault as applying force “without the consent of another person.” For sexual assault specifically, Section 273.1 provides the critical definition: consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.”

This isn’t just legal jargon—it’s the foundation that determines whether sexual activity is lawful or criminal. The word “voluntary” carries enormous weight here. It means the agreement must be freely given, without coercion, threats, or manipulation. The agreement must also be specific to the particular sexual activity taking place.

The Criminal Code automatically invalidates consent obtained through force, threats, fear, fraud, or an abuse of authority. These circumstances make any apparent agreement legally meaningless, regardless of what might have been said or done.

 

Landmark Supreme Court decisions

Two landmark Supreme Court of Canada decisions have shaped how consent is understood and applied in sexual assault cases. These cases aren’t just legal precedents—they’re the rules that govern every sexual assault prosecution in Canada today.

1. v. Ewanchuk (1999) fundamentally changed Canadian sexual assault law by definitively eliminating any defence based on implied consent. The Court ruled that there is no “middle ground” between consent and non-consent. Either the complainant consented, or they didn’t. The Court rejected the idea that consent could be implied from a complainant’s conduct, dress, or failure to resist.
2. v. J.A. (2011) established that consent must be contemporaneous—meaning it must exist at the time the sexual activity occurs. This ruling made it clear that advance consent to sexual activity while unconscious is legally impossible. The Court emphasized that consent requires an “operating mind” throughout the sexual encounter.

 

 

What is implied consent?

Implied consent refers to agreement that is inferred from circumstances, conduct, or past behaviour rather than explicitly stated. In most areas of law, implied consent can be valid—for example, when you extend your arm to a doctor for a vaccination, you’re implying consent to the medical procedure without saying “yes, please give me this injection.”

However, when it comes to sexual activity, Canadian law has completely rejected the concept of implied consent. The Supreme Court’s decision in R. v. Ewanchuk made this crystal clear: there is no such thing as implied consent to sexual activity in Canada.

 

Dangerous assumptions that lead to charges

This means that assumptions about consent based on:

• A smile or flirtatious behaviour
• Sharing a meal or drinks together
• Previous sexual relationships
• The absence of verbal objection
• Passive participation or lack of resistance
• Clothing choices or appearance
• Being in a private setting together

These assumptions are not just wrong—they’re legally dangerous. Canadian courts have repeatedly rejected these interpretations, and relying on them can result in sexual assault convictions.

The Ewanchuk decision established that silence, passivity, or ambiguous conduct cannot constitute consent. The Court stated that “the complainant’s testimony that she did not consent is the only evidence required to establish the absence of consent.”

This means that if someone doesn’t actively and clearly communicate their agreement to sexual activity, there is no consent. The law doesn’t require a complainant to say “no” or physically resist. The legal burden is on the initiator of sexual activity to obtain clear, affirmative consent.

 

 

What is express consent?

Express consent is the only legally recognized form of consent for sexual activity in Canada. This means consent must be communicated clearly and unambiguously through words or unmistakable actions.

 

Clear communication methods

Verbal consent is the clearest form of express consent. Examples include:

• “Yes, I want to do this.”
• “I want to have sex with you now.”
• Clear verbal agreement to specific acts

Non-verbal consent can also be express, but it must be unambiguous and affirmative. This might include:

• Actively initiating physical contact
• Pulling someone closer in a direct and unmistakable way
• Clear, enthusiastic participation in escalating physical contact

The key is that the consent must be active and clear, not passive or ambiguous. Courts will scrutinize whether a reasonable person would understand the conduct as clear agreement to sexual activity.  The safest way to approach engaging in  consensual sexual activity is to obtain both express consent (i.e., where your partner clearly states  “Yes, I want to have sexual intercourse with you”) and non-verbal consent before and during any sexual activity. 

 

Ongoing and revocable nature

Express consent isn’t a one-time event—it’s an ongoing process throughout any sexual encounter. Consent to one sexual act doesn’t automatically mean consent to other acts. Consent to sexual activity on one occasion doesn’t mean consent on future occasions.

Perhaps most importantly, consent can be withdrawn at any time. If someone says “stop” or “no,” or if their conduct indicates they want to stop, the sexual activity must cease immediately. Continuing after consent has been withdrawn constitutes sexual assault.

Understanding consent in sexual activity requires recognizing that each encounter stands alone and that consent must be present throughout the entire interaction.

 

 

Major differences between express and implied consent

The fundamental difference between express and implied consent in the context of sexual assault law is simple: only express consent is legally valid.

 

Legal recognition

Express consent is the only form of consent recognized by Canadian courts for sexual activity. Implied consent has been completely eliminated as a defence in sexual assault cases since the Ewanchuk decision in 1999.

 

Communication requirements

Express consent requires clear, unambiguous communication through words or unmistakable actions. Implied consent, by contrast, would rely on assumptions based on circumstances, behaviour, or past interactions—none of which are legally valid for sexual activity.

 

Practical implications

Understanding this distinction is crucial for anyone facing sexual assault allegations. Relying on what you believed was “implied consent” is not a legal defence—it’s a path to conviction. The legal definition of consent makes clear that only express, ongoing consent is legally sufficient.

 

 

Why the type and quality of consent matters during sexual assault cases

The type and quality of consent is often the central issue in sexual assault prosecutions. Understanding how courts evaluate consent can mean the difference between conviction and acquittal.

 

Impact on defence strategies

The prosecution will focus intensely on whether express consent was obtained and maintained throughout the encounter. Your defence must demonstrate not only that you believed consent existed, but that this belief was reasonable and based on clear communication.

 

The “honest but mistaken belief in communicated consent” defence

This defence allows an accused person to argue that they genuinely believed the complainant was consenting, even if the complainant says they weren’t. However, this belief must be both honest and reasonable, and the accused must have taken reasonable steps to ascertain consent.

The defence has strict requirements:

• The belief must be genuinely held
• The belief must be reasonable in the circumstances
• The accused must have taken reasonable steps to ascertain consent
• The belief cannot be based on self-induced intoxication, recklessness, or willful blindness

 

Reasonable steps to ascertain consent

The legal requirement to take “reasonable steps” is the critical element of the honest belief defence. The law requires that you actively ensure you have consent—you can’t simply assume it exists.

Reasonable steps might include:

• Asking for verbal confirmation before and during sexual activity
• Paying attention to your partner’s responses and body language
• Checking in if there’s any ambiguity about consent
• Stopping if there’s any indication of reluctance or discomfort

What doesn’t constitute reasonable steps:

• Assuming consent from past sexual encounters
• Interpreting silence as agreement
• Proceeding despite ambiguous signals
• Relying on assumptions about what someone “really wants”

 

Credibility assessments

Courts will examine the credibility and reliability of both the complainant and the accused. The quality of consent—whether it was clear, ongoing, and freely given—becomes central to these assessments. Honest but mistaken belief in communicated consent requires demonstrating that reasonable steps were taken to ensure consent was present.

 

 

Frequently asked questions

Can past sexual activity imply future consent? Absolutely not. Each sexual encounter requires fresh consent, regardless of past relationships or sexual history. Being married, dating, or having had sex before doesn’t create any presumption of consent for future sexual activity. Past consent doesn’t equal present consent.

What if someone doesn’t say “no”? The law doesn’t require a complainant to say “no” or physically resist. The absence of resistance doesn’t equal consent. The focus is entirely on whether the accused obtained affirmative consent. The legal burden is on the person initiating sexual activity to ensure they have obtained clear, affirmative consent.

How does intoxication affect consent? A person cannot legally consent if they’re incapacitated by alcohol or drugs. The key question is whether they had the capacity to understand the nature of the sexual activity and communicate their agreement. Proceeding with sexual activity when someone is severely intoxicated is legally perilous. Drunken consent in Canadian criminal law is a complex area where the line between capacity and incapacity can determine the outcome of a case.

Can consent be given in advance? No. The J.A. decision made it clear that consent must be contemporaneous with the sexual activity. You cannot give advance consent to sexual activity that will occur while you’re unconscious, asleep, or otherwise incapacitated. The Court emphasized that consent requires an operating mind throughout the sexual encounter.

What constitutes “reasonable steps” to obtain consent? Reasonable steps include actively communicating about consent, paying attention to verbal and non-verbal responses, checking in during sexual activity, and stopping if there’s any indication of reluctance. It’s not enough to assume consent exists—you must take active steps to ensure it’s present and ongoing.

Does the age of consent affect these principles? The age of consent for lawful sexual activity in Canada is generally 16, but there are important exceptions. For individuals under 18, consent cannot be given in situations involving relationships of trust, power, or authority, or sexual exploitation. These provisions recognize that young people may be particularly vulnerable to coercion.

 

 

Protecting your rights when facing sexual assault allegations

Canadian sexual assault law is built on a foundation of express, ongoing consent. Misunderstanding this distinction has severe consequences that extend far beyond the courtroom. The prosecution’s case will be built around these consent principles, examining every detail of the encounter to determine whether express consent was obtained and maintained.

If you are under investigation or have been charged with sexual assault, the Crown will build its entire case on these principles. Do not rely on your own interpretation of what happened. The complexities of consent law require experienced legal representation who understands both the legal requirements and effective defence strategies.

A successful defence strategy requires proving you understood these legal requirements and took active steps to ensure consent was present. At Kruse Law Firm, our experienced criminal defence lawyers build cases that address these precise points. We represent clients facing sexual assault allegations throughout Ontario.

Sexual assault lawyers in Ontario understand that defending these cases requires a thorough knowledge of consent law and the ability to demonstrate that reasonable steps were taken to ascertain consent. Our team understands the complexities of consent law and has successfully defended clients in cases involving questions of express versus implied consent. We have offices conveniently located in London, Windsor, Toronto, and Kitchener to serve clients across the province. Contact us immediately for a confidential consultation to discuss your case and develop a strategic defence based on the complexities of consent law.