In a civil sexual assault claim in Canada, the plaintiff does not always have to prove that the sexual contact was non-consensual. The plaintiff proves that the touching occurred, and it is then for the defendant to prove that the plaintiff consented. Consent means a voluntary agreement to the specific sexual activity in question, and silence or the absence of resistance does not establish it. Canadian courts, including the Supreme Court of Canada, have developed a substantial body of law on consent, much of it in the criminal context, and the principles carry significant weight in civil sexual assault claims as well.
Two Supreme Court of Canada decisions anchor this area. Non-Marine Underwriters, Lloyd's of London v Scalera, 2000 SCC 24 ("Scalera"), a civil case, sets out who must prove consent in a civil claim for sexual battery. R v Barton, 2019 SCC 33 ("Barton"), a criminal case, provides the Court's fullest account of what consent means. This article draws on both, and it identifies which rules come from the civil law and which from the criminal law, because the two systems do not treat consent identically (Scalera at para 32). It is intended as a general primer and does not constitute legal advice about any particular situation.
The Civil Tort of Sexual Battery
In Canadian civil law, a claim for sexual assault is typically brought as an action for "sexual battery", a form of the tort of battery applied to sexual contact. The Supreme Court of Canada addressed the elements of this tort in Scalera. The tort of battery exists to protect every person's right to control their own body, as Justice McLachlin (as she then was) explained:
"The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated" (Scalera at para 15).
This principle is the foundation of civil sexual assault litigation. Every person has the legal right to decide who touches them and how, and the law provides a remedy when that right is violated through non-consensual sexual contact. Sexual contact is fundamentally different from the incidental physical contact of daily life. Justice McLachlin emphasized that sexual touching does not fall into the category of contact that is generally accepted in the ordinary course of activities. Rather, it involves a deliberate and targeted act directed at another person's body (Scalera at para 21). This distinction matters because, while we may be taken to have implicitly consented to certain everyday forms of contact (a tap on the shoulder, a handshake), the law does not extend any such assumption to sexual contact.
Who Must Prove Consent?
The burden of proving consent does not rest where many people assume. In Scalera, the Supreme Court of Canada held that the plaintiff need only prove that direct sexual contact occurred. Once the plaintiff establishes this, the burden shifts to the defendant to prove consent or lawful excuse, including actual or constructive consent (Scalera at paras 7 and 43, per McLachlin J.). Constructive consent means the defendant proves that a reasonable person in his position would have thought the plaintiff consented (Scalera at para 2). In practical terms, consent operates as a defence, and the person who claims the contact was consensual bears the onus of proving it. The plaintiff is never required to disprove consent, actual or constructive (Scalera at paras 18 and 34).
Civil Claims Are Distinct from Criminal Prosecutions
Civil and criminal proceedings operate under different rules. In a criminal prosecution for sexual assault, the Crown must prove guilt beyond a reasonable doubt. In a civil action, the standard is the balance of probabilities, which asks whether it is more likely than not that the claim is made out. Because the standard of proof is lower and the burden of proving consent may shift to the defendant rather than the plaintiff, civil litigation can provide an avenue of accountability even in cases where a criminal prosecution does not proceed or results in an acquittal.
What Does "Consent" Actually Mean?
The Supreme Court of Canada's decision in Barton provides the Court's most detailed account of the legal meaning of consent to sexual activity. Barton is a criminal case, and the rules described in this section are rules of criminal law. They show how the Supreme Court understands consent, but the burden of proof and the defences in a civil claim remain those set out in Scalera. In the criminal context, consent is defined in section 273.1(1) of the Criminal Code as "the voluntary agreement of the complainant to engage in the sexual activity in question", an agreement that must be freely given (Barton at para 88).
In the criminal law, consent focuses on the complainant's subjective state of mind. The question is whether, in their own mind, they actually wanted the sexual touching to take place. As the Court stated in Barton, for purposes of determining whether consent was present, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant (Barton at para 89). The civil law asks about perception differently. Under Scalera, a defendant who says the contact was consensual bears the burden of proving either that the plaintiff consented or that a reasonable person in the defendant's position would have thought the plaintiff consented (Scalera at paras 2 and 7, per McLachlin J.).
Consent is not an open-ended or blanket permission. The Supreme Court made clear that consent must be linked to the specific sexual activity in question, encompassing the specific physical act, the sexual nature of the activity, and the identity of the partner (Barton at para 88). Consent to one form of sexual activity is not consent to another. It must also be present at the time the sexual activity takes place, cannot be given retroactively, and can be revoked at any time (Barton at para 88).
What Consent Is Not
The Criminal Code definition tells only half the story. In Barton, the Supreme Court of Canada also identified several things the law does not treat as consent. Each corrects a misconception that once had currency in this area of law.
There is no such thing as implied consent to sexual activity in Canadian law. The idea that a person should be deemed to have consented unless they protested or physically resisted has no place in the law. The Court in Barton reaffirmed that it is an error of law to assume that unless a woman says "no," she has implicitly given her consent to sexual activity (Barton at para 98). Silence, passivity, or ambiguous conduct cannot be equated with the communication of consent either (Barton at para 109). A person who does not say "no" has not said "yes," and the law requires affirmative agreement, not merely the absence of objection.
The Supreme Court also rejected the concept of broad advance consent, the idea that a person could agree in advance to sexual activity of an undefined or open-ended scope. The Court held that a belief that the complainant gave broad advance consent to sexual activity of an undefined scope is a mistake of law, not a mistake of fact (Barton at para 99). Consent must be specifically directed to each sexual act. Past sexual activity likewise does not establish present consent. In the criminal law, the inference that a person's past sexual activities make it more likely that they consented to the sexual activity in question is prohibited, and as the Supreme Court stated in Barton, relying on such reasoning, the first of the so-called "twin myths," constitutes a mistake of law (Barton at para 100).
When Consent May Be Vitiated
Even where a person appears to have agreed to sexual contact, the law recognizes that consent may be vitiated (rendered legally invalid) in certain circumstances. Ostensible consent is not always valid consent. The Supreme Court of Canada recognized in Norberg v Wynrib that consent may be vitiated by power imbalances between the parties. In relationships of trust and dependency (such as those between a professional and a client, or an authority figure and a subordinate), one party's ability to freely consent may be compromised by the dynamics of the relationship.
Why This Matters for Civil Claims
The law of consent has direct and practical significance for anyone considering a civil claim for sexual assault. The civil tort of sexual battery provides a means for survivors to seek compensation for the harm caused by non-consensual sexual contact. Once sexual contact is established, the burden shifts to the defendant to prove consent. Because the standard of proof is the balance of probabilities, civil litigation can offer an avenue of accountability that is distinct from, and in many respects more accessible than, the criminal justice system.
The recognition that there is no implied consent, that silence is not agreement, and that consent must be specific and contemporaneous means that the law is responsive to the reality of how sexual violence occurs. Many survivors do not physically resist or verbally object in the moment, whether due to fear, shock, a power imbalance, or other circumstances. The law does not require them to have done so.
If you or someone you know has experienced non-consensual sexual contact, it is important to understand that civil legal remedies may be available. Baker Law Firm practices in the area of civil sexual assault litigation, representing survivors of sexual assault in civil claims for damages, including institutional liability claims. Every situation is different, and the applicable law depends on your specific facts.
If you would like to discuss whether you may have a civil claim, contact Baker Law Firm for a confidential consultation.