When someone reaches the age of consent in Canada, they can legally agree to sexual activity. Meanwhile, the criminal law sets severe penalties for those who engage in sexual activities with young persons below the age of consent, penalizing such activities by Canadians both inside and outside of Canada.
The law sets several exceptions and includes defences for those investigated or prosecuted for sexual exploitation, statutory rape or other sexual offences involving young persons.
Below we explore the age of consent in Canada, the close-in-age exceptions and possible defence strategies, and how other sexual offences against children are prosecuted in Canada.
What is the Age of Consent in Canada
The age of consent for non-exploitative sexual activity is 16 years, with two close-in-age exceptions.
Until May 2008, the age of Consent in Canada was 14 years.
Wherever the sexual activity can be considered exploitative, for example, where there is a relationship of authority, dependency or trust, the age of consent is 18 years. Examples of exploitative sexual activity may include the sexual relationship between a teacher and underage students and similar cases.
What Is Consent to Sexual Activity?
Unlike someone may think, in the context of sexual consent, the absence of ‘no’ doesn’t mean ‘yes.’ In legal meaning, consent is the voluntary agreement to engage in sexual activity. Anything short of such an agreement doesn’t constitute consent.
To further illustrate this point, the law defines specific instances which do not constitute consent, where:
- the agreement is expressed by someone else and not by the person in question,
- the person is unable to consent, for example, while sleeping,
- the victim is engaged in the sexual activity via abuse of authority, power or trust by the accused,
- the person expresses unwillingness to engage, or to continue to engage, in sexual activity, for example, by saying ‘no’ or by nonverbal signs or behaviour.
In other words, the consent must be active. The individual initiating the sexual activity should take steps to establish the consent and immediately stop should the consent be withheld at any point in time.
Close in Age Exceptions
While the law in Canada sets 16 years as the age of consent, there are two instances when this age can be lower based on the so-called close in age exceptions.
First Close in Age Exception
The first close-in-age exception is made for those who are 12 and 13 years old. According to this exception, children aged 12 and 13 years can consent to have sexual relations with someone who is less than two years older. For example, a 12-year-old can consent to have sexual relations with a 13-year-old.
Second Close in Age Exception
The second exception applies to those who are 14 and 15 years old.
In Canada, it is legal to engage in sexual activity with someone who is 14 and 15 years old under two conditions:
- the other partner is no more than four years older,
- there is no relationship of authority, trust or dependency, for example, such as in coach-athlete and similar relationships.
Under this exception, someone aged 14 years can engage in sexual activity with another person who is 18 years old and is not in a position of authority or trust toward the consenting person.
And, a person aged 15 years can engage in sexual activity with a person who is 19 years old and is not in a position of authority or trust toward the consenting person.
Understanding Exceptions of Sexual Exploitation
Despite the fact that the age of consent in Canada is 16 years, Section 153 of the Criminal Code outlaws sexual activities between young persons under 18 years committed under specific circumstances. According to the Criminal Code, when someone in a position of authority, dependency or trust is involved in sexual activity with a young person, they commit the offence of sexual exploitation, punishable by imprisonment up to 14 years.
When deciding upon the exploitative nature of the relationship, the judge will consider, among others:
- young persons’ age,
- the age difference between partners,
- how the relationship has evolved,
- the extent of possible influence or control over the young person.
What Is Statutory Rape?
Statutory rape involves touching any part of the body of a young person under the age of consent with any object for sexual purposes. It also includes inviting or inciting a young person to touch any part of the body or the other person.
As it is illegal to have sexual contact with a person under the age of consent, all such contact is considered statutory rape.
What Are the Best Defences Against Statutory Rape Charges?
There are several effective defences against statutory rape charges depending on the circumstances. Your sexual offence lawyer will need to account for the individual circumstances of your case and choose the winning strategy to have the best chances in court.
Apply Close in Age Exceptions
In the absence of an exploitative relationship between the complainant and the accused, it is a defence to claim that a young person consented to sexual activity where:
- the young person is aged 12-13 years, and the age difference between the accused and the young person is no more than 2 years, or
- when the young person is aged 14-15 years, but the age difference is less than 5 years.
Apply Exceptions to Sexual Exploitation Charges
Where the young person is above 16 years old but under 18 years old, it is the defence to claim that the young person has consented to sexual activity if the accused is not in a position of trust or authority toward the young person.
Mistake about Age
The law makes it clear that it is not a defence to claim that the accused believed that the complainant was over the age of consent unless the former took all reasonable steps to ascertain the age of the consenting individual.
Meanwhile, simply asking a young person about their age may not be enough to claim that the accused took all reasonable steps to ascertain the age. Young persons can misinterpret their age for various reasons, including intoxication, so there can be more than one step required.
These may also include accounting for the circumstances where the two meet, the appearance, activities and behaviour. For example, if the couple meets in a nightclub in Canada, it is reasonable to assume that the young person is over the age of consent as minors are not admitted to these venues.
Other Child Sexual Offences
The Canadian Criminal Code is stringent on other sexual offences, including young persons under the age of consent. Most of these cases are prosecuted as indictable offences and presume long-term incarceration.
The Criminal Code defines child pornography broadly and includes audio, visual and written materials involving persons under the age of 18 years, where:
- a young person is engaged in explicit sexual activity,
- such materials advocate or counsel unlawful sexual activity with young persons.
- the dominant characteristic of any such representation includes a depiction of sexual organs or anal region of a young person or an unlawful sexual activity with such person.
The Criminal Code penalizes not only production but also possession and access to child pornography. While the production of child pornography is always an indictable offence punishable by imprisonment up to 14 years, possession and accessing can be either indictable or summary, depending on the path selected by the Crown.
Luring a Child
Child luring is using the Internet to communicate with a young person to commit a sexual offence or abduction. The Criminal Code defines several situations where communication with a young person is considered an offence which include communication for the purposes of sexual exploitation, statutory rape, child pornography and abduction irrespective of sexual intent. All offences related to child luring are treated very seriously, with the punishment of up to 14 years in prison.
Exposure is another offence against public morals targeting persons under the age of consent in Canada. According to Section 173(1) of the Criminal Code, it is against the law to expose genital organs to persons under 16 years of age in any place for a sexual purpose. Such offence can be prosecuted summarily or by indictment with a punishment of up to two years and a minimum mandatory sentence of 90 days.
With the adoption of the Protection of Communities and Exploited Persons Act, aka Bill C-36, purchasing sexual services in Canada is illegal. The sexual services include not only sexual intercourse but also lap dance, masturbation and other types of sexual activities, for example, a paid sexual service over the Internet in front of a webcam.
When someone is convicted of purchasing sexual services from a person under 18 years of age, they face a potential sentence of up to 10 years in prison with a mandatory minimum sentence of 6 months. It is also against the law to materially benefit from child prostitution or encourage a young person to participate in prostitution under the penalty of imprisonment of up to 10-14 years.
Child Sex Tourism
Despite the fact that, by definition, child sex tourism occurs outside Canada, the Criminal Code considers any such sex offence by Canadians against children as committed in Canada. Consequently, if a Canadian citizen or a permanent resident is not prosecuted in another country for sex offences related to children, they will be prosecuted and penalized in Canada.
In its turn, the Supreme Court has confirmed the constitutionality of such prosecution for sex tourism in the R. v. Klassen case. This decision by the Supreme Court has further aligned Canadian criminal law with other jurisdictions with a similar approach, such as the United States and Australia.
What Should I Do if You Have Been Charged with a Sexual Offence?
In Canada, sexual offences against children are vigorously prosecuted and have severe consequences. These consequences include long-term imprisonment and registration in the Canada Sex Offender Registry, disrupting someone’s life and seriously affecting the chances of finding residence, employment and travel.
In case you are prosecuted or investigated for any sexual offences related to young persons below the age of consent in Canada, you need the assistance of experienced defence lawyers immediately. Please don’t hesitate to book a free consultation with the Oykhman Criminal Defence team as soon as possible to find out how we can help in your case.