Canada has strict rules as to the age of consent when it comes to minors engaging in sexual activity and whether a minor can give consent.
What does the law say?
The age of consent for sexual activity according to the law is currently 16 years of age. Any and all forms of sexual activity are disallowed between an adult and a person below the age of 16 with a few exceptions.
The law does allow for exceptions in cases in which the people having sexual activity are “close in age.” For example, a teenager that is 14 or 15 years of age can consent to sex with a person that is less than five years older but there cannot be a relationship of authority, dependency or trust with that person.
Similarly, a 12 to 14 year old can give consent to sexual activity but only with another teenager less than two years older than them.
Furthermore, the law increases the age of consent to 18 where the sexual activity “exploits” the minor. That means the sexual activity includes pornography, prostitution, or when the sexual activity happens in a relationship of trust, authority or dependency. A relationship can also be considered exploitative depending on its circumstances and nature.
The Criminal Code also includes an offence called “sexual interference,” which basically states that it is illegal for anyone to touch a person under the age of 16 either with an object or a part of their body for a sexual purpose. There is a mandatory minimum punishment of 90 days in prison for being found guilty of this crime. For a summary offence a person could get up to two years less a day in prison and if found guilty of an indictable offense, a person could face up to 14 years in prison.
It’s also an offense to invite a person under the age of 16 to touch them for sexual purposes. The punishment is the same as for sexual interference.
Further sections that deal with the sexual exploitation of minors include: sexual exploitation, incest, child pornography, luring a child, exposure, procuring, child prostitution, bestiality and child sex tourism.
An Ontario Court of Appeal case from 2015 upheld the law banning sex between a person under the age of 16 and an adult.
The case involved a 15 year old girl and a 21 year old man who had engaged in a relationship that included sexual activity. As the man was more than five years older than the girl, the exception didn’t apply and he had been charged with sexual assault.
However, as there was no exploitation, criminal intent or coercion of sexual activity in the relationship, a lower court judge didn’t enter a conviction even though she found the man guilty of sexual assault and sexual touching. The judge found the age-gap law violated the Charter. The court of appeal disagreed that there was a charter violation.
The appeal court explained that the girl suffered harm from the relationship as she ended up pregnant and had an abortion and that is what the law was designed to prevent. The law was intended to protect youths from sexual activities with adults due to inherent power imbalances between children and adults, and exceptions shouldn't be made.
If you have been charged with crimes that relate to sexual activities with a minor you should consult a criminal lawyer.
Age of Consent to Sexual Activity Department of Justice Canada
Sexual Offenses Criminal Code of Canada
Ban on willing sex between underage teens and adults ruled constitutional