Ghomeshi Case Has Canadians Asking: What is “Consent” in Canadian Law?

December 8, 2014

The Jian Ghomeshi case has sparked a great deal of controversy. It’s gotten Canadians talking. There’s been gossip. There’s been media hype. But most importantly, there’s been discussion about the greater issue at hand- Consent. Ghomeshi, a prominent CBC figure and host of the popular show “Q” has been accused of several counts of sexual assault against a number of complainants. Sexual assault which occurred after, Ghomeshi claims, the alleged victims gave consent to participate in acts of BDSM. It’s causing many Canadians to wonder- what is “consent” in the eyes of the law, and does it have limits?

In Canadian law, consent can be used to absolve a party from the negative consequences of an action. For instance, if you join a hockey league you consent to participating in a sport where you could possibly sustain 

an injury. If you suffer a broken wrist from being checked on the ice- even illegally- you will have already consented to the risk upon joining the league.

Rough sex, however, presents a set of complexities when it comes to the consent of each party. Although a party may have consented to certain acts in advance, that consent does not necessarily apply to the entire sexual encounter. In other words, consent in sexual cases must be ongoing. Each party has to be able to revoke consent (verbally or otherwise), even if consent had been given for the act in advance. And if a complainant is unable to express consent (for example, if they are being choked or gagged), consent is no longer applicable.

There are clear limits to consent in Canadian law, making it a questionable cornerstone for any defence strategy in a sex-related case. And the law makes it very clear: One cannot consent to being seriously injured. It remains to be seen what part consent will play in the Ghomeshi case in his upcoming trial. As a Criminal Defence Lawyer in Toronto, I am always staying abreast of cases like this in order to monitor the evolution of Canadian case law regarding sexual assault. If you are currently facing criminal charges for crimes of a sexual nature, reach out to my office for a free and confidential consultation. Working as your advocate, I’ll use my years of experience and skilled strategic planning to secure the best possible result for your case.

*During the holidays, everyone should keep the phone number of a trusted Impaired Driving Lawyer on hand. With increased police presence on the roads and the temptation to have one too many before driving home after the party, having advice from an Impaired Driving Lawyer is key when involved in a DUI investigation. Visit our contact page for more information on getting in touch with my office in the event of a DUI charge.

What’s your opinion of the Ghomeshi case? How far should the issue of consent cover a defendant in a case?

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