The Criminal Code defines sexual assault as follows:
265. (1) Assault- A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Most of the law which clarifies what is and what is not sexual assault comes not only from the Criminal Code but from a series of court decisions which discuss and analyze the issues in different contexts.
273.1 (1) Meaning of “consent” – Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) Where no consent obtained- No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant.
(b) the complainant is incapable of consenting to the activity.
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity.
(3) Subsection (2) not limiting- Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
265 (3) Consent- 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.
(c) fraud; or
(d) the exercise of authority.