According to Canadian Criminal Law, “giving voluntary permission is called consent”. Based on this definition, any sexual activity and sexual touching without consent are considered criminal offences.
The legal age of consent is the age after which an individual can legally agree to sexual activity. It is the age at which criminal law recognizes the legal capacity of a young person to provide such consent. The term sexual activity encompasses a range of actions from kissing to sexual intercourse.
Below the age of consent, sexual activities including sexual touching to sexual intercourse are prohibited. Of course there are exceptions when the involved parties belong to the same peer group or are close in age. This is explained later in the blog.
Keeping the rising cases of sexual assault in mind, as one of the best criminal defence lawyers in Edmonton,
we deem it upon us to educate our readers regarding the technicalities of sexual offences according to the Criminal Code.
Age of Consent Under The Criminal Code
In Canada, you have to be 16 years old to consent to any sexual activity. At this point, it is important to mention that you have to be 18 years old to be able to legally agree to sexual activity that involves prostitution, pornography or sexual activity involving a relationship of authority, trust or dependency.
Note that any non‑exploitative, consensual sexual activity with or between individuals above the age of 16 is not criminalized. In addition, consensual activity with those under 14 but over 12 is also not considered an offence if the accused is less than two years older than the complainant.
According to Section 151
of the Criminal Code
Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
- is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
- is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
This means that if an accused is charged with an offence under section 151 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject matter of the charge.
However, for this the accused should be less than five years older than the complainant; and should not be in a position of trust or authority towards the complainant.
Peer Group Exceptions
In terms of consent for sexual activity, there are some exceptions for youth under 16. The following stipulates the main points of these exceptions:
- Individuals aged 12 and 13 years can consent to sexual activity with another young person who is less than two years older than themselves.
- Individuals aged 14 and 15 years can consent to sexual activity with a partner that is less than five years older than themselves.
- Individuals aged 16 or 17 have reached the age of consent for sexual activity, as long as their partner is at least 14 years old.
- Situations In Which Consent Is Invalid
According to the criminal code, there are certain situations in which a young person is prohibited from legally consenting to any sexual activity.
This means, even if the individual says yes to sexual activity, it will not be considered consensual.
These situations are:
- The individual is under 12 years of age
- An individual under 18 years of age cannot consent to sexual activity with someone over 18 where there is a relationship of authority, trust, or dependency
- An individual under 18 years of age cannot consent to sexual abuse or “exploitation” such as pornography or prostitution
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