Lucinda Vandervort (University of Saskatchewan College of Law) has posted Sexual consent by ambush? Absent ab initio (Criminal Law Quarterly, forthcoming) on SSRN. Here is the abstract:
What subjective sexual consent is, is one question. How its presence or absence is proven in the context of a sexual assault trial is a quite different question. This article builds on existing jurisprudence to develop a new approach to proof of the absence of consent in the actus reus of sexual assault in all cases regardless of whether the complainant provides direct evidence about subjective consent and whether that evidence, if any, is credible and reliable. The issues addressed are illustrated by analysis of the trial decision in R v McLeod et al, 2025 ONSC 4319, aka “the Hockey Canada case”. The circumstances—ambush and swarming by a drunken gang—signified, as a matter of law, in my opinion, that subjective consent was either absent or legally ineffective and not “obtained”. As a matter of simple logic, it follows that subjective consent, viewed as a question of fact about the complainant’s “state of mind”, was ultimately immaterial for the outcome of this case, had no bearing on the verdict, and did not even need to be determined. This article is forthcoming and will appear in (2026) 74:4 Criminal Law Quarterly.
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