What’s the Age of Consent in Canada?

What is Consent?

Consent is the most important factor connected to sexual activity as it relates to Canadian criminal law. Consent is any form of clear and affirmative verbal or non-verbal communication that is exchanged between potential sexual partners prior to, and while engaging in, any form of sexual activity. In practice, this means someone can only consent to sexual activity when they voluntarily agree to participate in sexual activity. All partners must consent if sexual activity is to occur. Additionally, only an affirmative answer or cue such as the word, “yes,” is legally acceptable consent. An unclear answer, no answer, or a negative answer is not consent.

There are scenarios where consent will be revoked or will be invalidated. It is important to understand that anyone can stop consenting to sexual activity at any time. Consent must exist throughout the entirety of a sexual encounter and must be re-established any time the sexual activity progresses to a new level or changes in nature.

Furthermore, consent will not exist if someone does not have the capacity to provide it. This is typically seen when someone is intoxicated, otherwise impaired, or unconscious. Impaired or unconscious persons cannot consent to sexual activity. Consent also does not exist where consent is given by someone else on behalf of the person who would be engaging in sexual activity. Consent is a personal concept that can only be given by each individual person involved in the activity. Consent will also not exist where a person is pressured or forced into having sex with someone who is abusing a position of trust or authority over them. A failure to obtain legally valid consent during a sexual interaction, or to disregard a lack of consent may lead to someone being charged with sexual assault or a related crime.

What is the Age of Consent Under Canadian Law?

Not everyone is capable of consenting to sexual activity. Every person who engages in sexual activity must have reached the age of consent. The age of consent is the age where the law recognizes that a person can consent to sexual activity. The general age of consent in Canada is 16 years old. However, the age of consent may be adjusted depending on the circumstances of each case.

One scenario where the age of consent is adjusted deals with sexual relationships between children. This exception is known as the close-in-age exception. This exception allows for a 14 or 15-year-old to engage in sexual activity with someone who is less than five years older than them. A similar exception exists for 12 and 13-year-olds. But they may only have sex with partners less than two years older than them. Another exception to the age of consent establishes that someone must be at least 18 years old if they wish to consent to sexual activity if the relationship they have with their partner is one of trust and authority. For example, in a relationship between a student and their teacher, the age of consent would be 18 because the teacher is in a position of trust and authority over the student.

Can Someone Still be Criminally Liable for Engaging in Consensual Sexual Activity?

Non-consensual sexual activity is not the only action that criminal law is concerned with. Even if all persons involved in the activity have reached the applicable age of consent and provide valid consent, there are still factors that may lead to people being criminally charged in connection with that activity. There are several criminal offences that deal with other elements of sexual activity. The elements include things such as where sexual activity occurs. For example, the offence of indecent acts under s. 173(1) of the Criminal Code makes it an offence for any person to intentionally engage in sexual activity in a public place while in the presence of other people.

There are also several sexual offences that deal with the recording of sexual activity. Consider the offence of voyeurism. Section 162(1)(b) of the Code makes it an offence for anyone to secretly record sexual activity with their partner without the partner’s consent to being recorded. The recording of sexual activity is also a criminal offence if any one of the parties involved are under the age of 18. Such a recording would be considered child pornography, which may lead to the person who made the recording being charged with making, possessing, and/or accessing child pornography under s. 163 of the Code.

What is a Relationship of Trust and Authority?

A relationship of trust and authority can be one of several types of relationships that exist between people where one person can use their power over the other to control or influence them. Relationships of trust and authority are crucial to our society and may include such examples as: teacher-student, coach-player, employer-employee, or family relationships and close friendships where people depend upon each other for support. The importance of these types of relationships, as well as the power imbalance between the people involved means that the law must contend with the possibility of young people being sexually exploited by those who they should be able to trust.

Large age gaps often exist between the people within a relationship of trust and authority. This possibility, coupled with the power that the holder of the authority has over the other person, may lead to sexual exploitation, to which children are especially vulnerable. Sexual exploitation may occur where an authority figure uses their position to manipulate, pressure or force the other person to engage in sexual activity. This may be done using some form of threat or abuse.

These considerations are reflected in the law on the age of consent and are the reason why only persons aged 18 and older can consent to sexual activity with someone in a position of trust and authority over them. Once a person has reached adulthood it is the hope that they are able to appreciate the significance and possible consequences of forming these types of sexual relationships and are able to protect themselves as best they can.

What Penalties Will Someone Face for Engaging in Sexual Activity Without Consent?

If a person engages in sexual activity with a partner who has not reached the applicable age of consent, they may be charged with either sexual assault or sexual interference. Sexual interference is an offence under s. 151 of the Code. Under this provision, it is an offence for anyone to touch any part of the body of a child under 16 for a sexual purpose. Depending on the seriousness of each case, an offender may face different penalties for their actions. Less serious examples of sexual interference are classified as summary offences. In those circumstances, an offender may receive a sentence ranging from a minimum of 90 days imprisonment up to two years less a day. More serious cases, or indictable offence sexual interference sentences range from a minimum of one year of imprisonment up to a maximum of 14. The exact sentence an offender receives will depend on the facts of their case. This stage of analysis is where a judge would consider if there was an abuse of a relationship of trust and authority that led to the offence, which would result in an offender receiving a more severe penalty.

Sexual assault charges typically arise where there is no valid consent to sexual activity between partners who have reached the age of consent, or where there was sexual contact with a minor and the accused has been charged with bother sexual assault and interference.

In these cases, s. 271 of the Code sets out the same distinction between types of offences that apply to sexual interference, summary and indictable. The maximum punishment for summary sexual assault with an adult victim is 18 months’ imprisonment, while indictable offences receive a maximum of 10 years. If the victim is under 16, that range shifts to a summary minimum of six months and maximum of two years less a day; and to one year up to 14 for indictable. Like with sexual interference, the facts of each sexual assault case such as the presence of a relationship of trust and authority, will help determine the specific punishment appropriate for the case.