“Consent” is one of the most essential words in Canadian laws covering sexual assault and other sexual offences. Police can address any sexual activity committed without consent as a criminal offence. As noted by a Royal Canadian Mounted Police brochure — Respect Sexual Consent — anyone “initiating sexual activity needs to take reasonable steps to establish consent.”
However, not just anybody can grant consent to engage in sexual activity, with age being a crucial component in the establishment of legal consent. With extensive experience as sexual assault defence lawyers in the Greater Toronto Area, the legal team at Mass Tsang knows all about consent in relation to the law. Read on to learn what you need to understand about Canada’s Age of Consent Law.
Under Canadian Law, a person must be 16 years old before they can legally consent to engage in sexual activity. This generally means that engaging in any sexual activities with those under 16 is illegal. Even if given consent, a person who kisses, touches for a sexual purpose, or has sexual intercourse with a person under age 16 can be charged with sexual assault. The age of consent plays a role in other Criminal Code sexual offences, and those accused of age of consent-related offences typically face stiffer penalties than other offenders. Because those under 16 cannot generally consent to sexual activities, consensual sex is not a legal defence to sexual assault and related offences.
You also need to know that the age of consent rises to 18 if the consenter is in a relationship of trust or authority with the other party. This is designed to discourage exploitive sexual activity, like that which may occur between a boss and their teenage worker or teacher and underage student. There are also “close-in-age” exceptions that we will examine below.
Canadian law provides two exceptions in cases of consensual sexual activity between those under 16 who are close in age, provided that the older partner is not in a position of dependency, authority, trust, or another potentially exploitative scenario. Fourteen- and 15-year-olds can legally consent to sexual activity with partners who are less than five years older, and 12- and 13-year-olds are allowed to engage in consensual sexual activity with those less than two years older.
Sexual assault committed against those under the age of consent carries mandatory minimum and stiffer penalties than sexual assaults involving those over the age of consent. Section 271 of the Criminal Code mandates a minimum sentence of six months in jail for a summary conviction and a minimum one-year prison term when charged as an indictable offence. While the maximum sentences are respective 18-month and 10-year prison terms, if the alleged victim is below the age of consent, the maximums rise to two years and 14 years, respectively.
Section 173 of the Code differentiates flashing or exposure differently based on the age of consent. If committed against those over the age of consent, the Code terms it an “indecent act,” with no mandatory minimum punishment. However, the Code terms it “exposure” if the act is committed against those under 16. It carries a mandatory minimum punishment of 30 days in jail if prosecuted under summary conviction or 90 days if charged as an indictable offence. The respective maximum penalties are six-month and two-year prison terms.
Other Criminal Code offences that account for the age of consent and/or mandate mandatory minimum penalties include:
Based on potential exploitation, some offences apply the 18-year-old age of consent. These include:
All these offences impose significant penalties on those convicted, with most carrying enhanced penalties on those specifically breaching the age of consent. Those convicted also face mandatory registration on the national sex offender registry, a criminal record, and potential future difficulties with employment and travel.
A common theme in the Criminal Code’s language covering age of consent charges is that consent is not a defence. Believing that the complainant was older than 16 (or 18 where applicable) at the time of the offence is also not a defence “unless the accused took all reasonable steps to ascertain the age of the complainant.”
Thus, anyone charged with an age-of-consent-related offence may have a viable defence if they honestly believed the complainant was of age and have evidence that they tried to deduce the age. Determining the reasonableness of steps taken to uncover the complainant’s age will be a subjective exercise. Even if the complainant repeatedly told the accused they were over 16, the court may not accept this as enough. On the other hand, if the couple were served alcohol at a bar or nightclub, the court might consider it reasonable that the accused believed that the complainant was of age. A skilled sexual assault defence lawyer is generally adept at uncovering nuanced evidence relating to consent that can support their client.
While consent is not a defence, if the sexual activity was consensual and lacking exploitation, a defence lawyer may have an easier time encouraging the Crown to reduce or drop charges. This holds especially true if the complainant had a positive relationship with the accused, as they might prove to be an uncooperative witness for the prosecution.
As with most criminal cases, strategizing an effective defence depends mainly on the distinct circumstances that the Crown alleges constitute the offence. An experienced sexual assault defence lawyer will thoroughly examine the Crown’s evidence and narrative of the alleged offence to uncover anything that can weaken their case.
With more than 30 years of combined experience, the criminal defence lawyers of Mass Tsang have defended thousands of Greater Toronto Area clients against sexual assault charges. To begin strategizing the most effective defence, schedule your free consultation by contacting us today.
