“Is it against the law to date a minor in Canada?” a 50-something-year-old client asked one of our criminal defence lawyers recently.
“Well, um, technically, no,” our lawyer responded hesitantly. “But if you—”
“No. Not me,” our client interjected with a chuckle. “I’m asking because I think my 19-year-old son is dating one, and I don’t want him to get in any trouble.”
“Ah, Ok,” our lawyer relaxed. “Well, technically, no. It’s not against the law to date a minor in Ontario or anywhere in Canada. However, engaging in sexual activity with a minor is unlawful depending on the ages of the parties.” He then went on to explain the “age of consent” and how it intersects with other elements of the Criminal Code to proscribe what is and what is not lawful relating to sexual activity with a minor in Canada.
Hearing this interchange made us realize how confounding the law is on the subject, and we realized that it might make a great blog post to further educate our Greater Toronto Area readers about interesting elements of Canadian criminal law. And we’ll start by reiterating that it’s not illegal to “date” a minor, but kissing, touching, or engaging in any activity that can be construed as sexual might make a date with one illegal. Let’s dive deeper into the issue.
Under Canadian law, it is illegal to engage in sexual activity with anyone without their consent, and committing a non-consensual sexual act with someone is grounds for being charged with sexual assault or related offences. Persons under age 16 are generally not legally allowed to consent to such activities. We say “generally” because there are exceptions to the law and other vagaries that complicate the distinction of “age of consent.” Thus, if our client’s 19-year-old son wants to get cuddly with his potential minor-age date, he’d best understand the law.
Section 150.1 of the Criminal Code defines Canada’s under-16 age of consent law. Age 16 is the baseline for legal consensual sexual activities, but some exceptions can move the consent age in either direction. However, all these exceptions are only applicable if the older person is not in a position of trust, authority, dependency, or exploitative capacity.
In what might be good news for our client’s son, a “close-in-age” exception allows 14- and 15-year-olds to consent to sexual activity provided their partner is less than five years older. Another close in age exception allows minors ages 12 and 13 to consent to sexual activity with those two or fewer years older.
Conversely, the age of consent rises to 18 regarding sexual activities with those in a position of trust, authority, dependency, or exploitative capacity. Anyone in such a position who engages in sexual activities with a 16- or 17-year-old risks being charged with any number of sexual-assault related offences based on the lack of legal consent.
When age-of-consent-related sexual offences are based on the position of trust, authority, dependency or exploitative capacity factors, the Crown must prove they were in play through a subjective determination. This involves examining the difference in ages, how the relationship began and evolved, other circumstances affecting the relationship, and whether the accused was in a position allowing them to control or influence their young partner.
Note that those charged with an age-of-consent sexual offence cannot claim that they believed their partner was of legal age as part of their defence unless they “took all reasonable steps to ascertain the age of the complainant.”
Anyone who engages in sexual activity with a person who has not reached the age of consent or meets the age of consent exceptions could be charged with a Criminal Code Section 271 sexual assault offence. A conviction carries severe penalties, with a maximum of 14 years imprisonment and a mandatory minimum sentence of six months (summary conviction) or one year (indictable offence) if the complainant was under age 16.
The Criminal Code includes several other sexual-related offences that are designed to protect minors—those under age-of-consent thresholds—from sexual predators. Whether the Crown charges an offender with sexual assault or one of these other offences typically depends on the type of sexual activity, the ages of the complainant and alleged offender, and the nature of the relationship between them. Let’s review the most common of these other offences:
A conviction of these age-of-consent-related offences carries mandatory minimum prison sentences and maximum prison terms ranging from 10 to 14 years, depending on the offence. However, the punishment doesn’t stop there, as judges usually order convicted offenders to register with the National Sex Offender Registry (NSOR) and comply with Criminal Code Section 161 conditions.
Given the severe penalties that Ontario judges can impose upon anyone convicted of an age-of-consent-related sexual offence, anyone “dating” or otherwise interacting with a potential minor should be aware of the applicable laws and strive to determine the person’s age. Mass Tsang’s highly experienced sexual assault lawyers have successfully defended hundreds of Greater Toronto Area clients from sexual offence charges involving minors. If Ontario police have charged you or someone you know with a sexual offence, contact Mass Tsang’s legal team today for a free consultation.
