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First off, it is important to understand, the age of consent only matters when one of the parties to the relationship is under 18.
Anyone 18 or over who is voluntarily engaging in sexual relations with someone older than him or her is free to do as they please. Parliament would not dream of imposing on the fundamental liberties of individuals in their choice of partner or partners.
If you find yourself reading this for personal guidance then you’re not completely oblivious to the fact that an age difference between parties in a relationship wherein one is at least less than 16, could prove problematic.
It’s important to understand that yes, Canada does have an age of consent and yes, there could be some serious consequences for it if the parties are not sufficiently close in age so as to legitimate any kind of consent.
It’s also important to note that age of consent laws apply to all forms of sexual activity (kissing, fondling, etc). If there is not a legally appropriate age difference between two parties so that sexual consent is not vitiated, one party could be held criminally liable.
What is the Age of Consent?
The age of consent is the age at which a young person can legally agree to sexual activity, in Canada it is generally 16 years, however this number can be context specific since some cases require the age of consent to be higher depending on the nature of the relationship.
A 16 or 17-year old cannot consent to sexual activity if:
Their sexual partner is in a position of trust or authority towards them;
The young person is dependent on their sexual partner (for example for care or support); or
The relationship between the young person and their sexual partner is exploitative
But what is meant by a relationship being “exploitative?”
Sexual Exploitation: Factors
Several factors may be taken into account when determining whether a relationship is exploitative of a young person:
The young person’s age;
The age difference between the young person and their partner;
How the relationship developed (for example, quickly, secretly, or over the internet);
Whether the partner may have controlled or influenced the young person
Section 153(1.1) of the Criminal Code states that any persons who directly or indirectly engage in any form of sexual activity with persons under 18 with whom they have this kind of relationship with, could be guilty of an indictable offence and liable to imprisonment for up to 14 years with at a minimum punishment of 1 year.
Alternatively, such a person is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term not more than 2 years and to a minimum punishment of imprisonment for 90 days.
Close in Age Exceptions:
A 14 or 15-year old can consent to sexual activity so long as their partner is less than five years older and there is no trust, authority, dependency or other exploitative relationship between the two.
In other words, if the partner is 5 years or older than a young person between the ages of 14 and 15, then any sexual activity between the two will be considered a sexual offence.
A “close in age” exception also applies for those who are 12 or 13-years old.
A 12 or 13-year old can consent to sexual activity with a partner as long as the said partner is less than two years older and there is no trust, authority, dependency or other exploitative relationship between them.
This means that if the partner is at least 2 years older than the 12 or 13-year old, any sexual activity would constitute a criminal offence such as sexual assault.