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Understanding Consent

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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.

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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.

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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.

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Recent Cases

R. v. Storey, 2021 ONSC 1760

This Ontario Superior Court of Justice case is an example of when age of consent becomes an issue during criminal proceedings. In this circumstance, the offender was a 21-year-old man with a mental disability that limited his intelligence and ability to function. He was charged with several sexual offences, including sexual interference and sexual assault in connection with a relationship he had formed with two young girls. The assault and interference charges were committed against only one victim. It was found that the offend had engaged in a sexual relationship with the 13-year-old girl that involved unprotected intercourse. Since the victim had not reached the age of consent, the offender could not rely on it as a defence, especially considering he claimed to be aware that the age of consent was 16.

The total sentence the offender received was five years imprisonment and several ancillary orders, including: DNA and SOIRA orders, as well as a 10-year weapons ban. Almost four years of that sentence was the result of the sexual interference charge. In issuing this sentence, the court considered the seriousness of the criminal conduct, as well as the circumstances of the offender.

In some cases, an established mental disability can demonstrate that an offender cannot understand the consequences of their actions, which would mean they cannot be held to the level of accountability faced by a typical offender. However, in this case the offender made several statements that spoke to the fact that he was aware of the illegal nature of his activities, and he intended to lie to the police. This meant the sentence was not reduced due to the offender’s disability. “In the face of evidence such as that, and in the absence of any clear indication by Dr. Martin that Mr. Storey does not appreciate the consequences of his actions, I am simply unable to find that Mr. Storey’s intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court.” [at para 60]

R. v. Eichner, 2021 ONSC 520

This Ontario Superior Court of Justice case also dealt with a sexual relationship where one party had not reached the age of consent. The offender, a 29-year-old man was charged with sexual interference and invitation to sexual touching against a 13-year-old girl. The relationship involved intercourse and repeated instances of sexual touching on other days. The offender was sentenced to a total of four years and 10 months imprisonments. Ancillary SOIRA and DNA orders were also issued, along with a lifetime weapons ban.

There were several factors in this case that influenced the sentencing decision. The court highlighted the significant age gap between the parties, the severe nature of the sexual contact, and the fact that several incidents occurred. The court also emphasized that the age of consent issue meant that any argument that the victim apparently willingly participated in the sexual activity could not be considered. “As the Supreme Court has said, ‘a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults.’

The courts have recognized that where a child appears to acquiesce or even seek out the sexual attention of an adult, it is the legal responsibility of the adult to protect the child. Adults who see these situations as opportunities to satisfy their own sexual urges are no better or worse than those who take steps to actively seek out under-age child victims.” [at paras 83-84]

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.