Age of Consent

  • It is now illegal for adults in Canada to have sex with a partner under the age of 16
  • The Tackling Violent Crime Act raises the legal age of sexual consent in Canada to 16 from 14, the first time it has been raised since 1892.
  • But the law includes a “close-in-age exception,” meaning 14- and 15-year-olds can have sex with someone who is less than five years older.

The Tories said they raised the age, in part, to deal with internet predators. The new law puts Canada’s age of consent in line with those in Britain, Australia and most of the United States.

Definition:
Beginning May 1, 2008, the age of sexual consent in Canada is 16 years old. The age of consent in Canada is the age at which the criminal law recognizes the legal capacity of a young person to consent to sexual activity. Under the Criminal Code of Canada anyone under the age of 16 cannot legally consent to any form of sexual activity, from kissing to intercourse. It means that adults are criminally liable if they have sex with someone under that age. The offence carries a maximum penalty of 10 years in prison.

The law has a “close-in-age” exemption of less than five years, which permits teens to engage in consensual sex with a partner who is less than five years older as long as the older partner is not in a position of trust or authority and the relationship is not exploitive.

The age of protection for exploitive sexual activity, such as sexual activity involving prostitution, pornography, or a relationship of trust, is 18.

The age of consent for anal sex is also 18.

Consent

It is a criminal offence to engage in sexual activity with another person who does not consent. Consent must be freely given – it cannot be forced. The courts can decide that consent was not given if the offender uses force, threats, fear of bodily harm, lies about their intentions, or, if the victim does not have the mental capacity to consent. It is not a defence that the accused believed that the complainant consented to the activity where, 2 273.1. (2)

  • the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or willful blindness; or
  • the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Willful blindness arises when the accused, who has become aware of the need for some inquiry, declines to make the inquiry because he or she does not wish to know the truth, preferring to remain ignorant.

The law of consent is complex. As with any case of sexual assault, it is not uncommon for the perpetrator to claim that the sexual activity between him/herself and the victim was consensual. For years, the Criminal Code did not define “consent”, and thus the verdicts varied considerably in cases where consent was an issue.

On June 23, 1992, Bill C-49 became law and for the first time, the term “consent” (as it relates to sexual assault) was defined as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Furthermore, the Criminal Code now outlines situations in which consent is not obtained. It should be noted, however, that the absence of consent is not strictly limited to the following situations.

Section 273.1(2) states that consent is not obtained if:

  • the agreement is expressed by the words or conduct of a person other than the complainant;
  • the complainant is incapable of consenting to the activity;
  • the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
  • the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
  • the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.