For a very long time, the law considered consent in terms of a failure to resist, so a submission could be equated with a consent. Our definition in the Criminal Code says that not only does there need to be consent, that the complainant has to want in her own mind the sexual touching to take place, but any agreement that's given has to be a voluntary one. For example, we have had cases where that agreement was extorted by a threat to expose nude pictures to family and friends, and the court has said, “Well, you said 'yes'”, but that's not a voluntary yes; it's a yes that was extorted through some kind of pressure.
I've done quite a lot of work with my colleague Isabel Grant on the sexual abuse of persons with intellectual disabilities. We see cases in which there's a kind of conditioned compliance, and in which complainants will say “yes”, and they will get in the van and they will take off their pants, but they may not have the ability to really understand what they're being asked to do. Often those cases are dealt with under the concept of incapacity to consent, and we don't have a very clear legal standard for when that exists.
Any clarification we can give will be beneficial. It doesn't have to be an exhaustive list, but there has to be the idea that consent has to be informed, that you have to have the ability to understand that you can refuse—because some individuals with intellectual disabilities do not know they can say no to sexual activity—and that it has to be your actual agreement. Those are all things that can be read into the code as it's currently written, but sometimes are not fully realized in the cases we see.