Document Type
Working Paper
Publication Date
12-2025
Subjects
sexual assault, fault, reasonable steps, the Charter
Abstract
The Canadian Charter of Rights and Freedoms and the criminal law of sexual assault have in many ways grown up together over the last four decades. In this article we examine the impact of the Charter on the fault requirement for sexual assault and sexual offences against children. We argue that the Charter has been used repeatedly to undermine the early gains of feminist law reform and that courts have gone out of their way to avoid the reasonable steps provisions of the Criminal Code. Courts are consistently reluctant to expect men to desist from sexual activity until they have the necessary information around the presence of consent or the adult age of the complainant. We urge the Supreme Court of Canada to clarify that the reasonable steps provision is a clear expression of legislative intent to modify the mens rea for the relevant offences and to add a constitutionally permissible objective component to that mens rea. As such, reasonable steps provisions were intended, and should operate as, an independent path to conviction where an accused fails to raise a reasonable doubt that such steps were taken.
Citation Details
I. Grant & J. Benedet, "Sexual Assault, Fault and the Charter" Ottawa Law Review [forthcoming in 2026].