- There is nothing that prohibits someone in Canada from “dating” a minor, sixteen years of age and younger, so long as the date does not involve sexual activity.
- In Canada all sexual activity, from sexual touching to sexual intercourse, with a minor sixteen years and younger, who is more than fives years your junior is a criminal offence.
- In Canada the age of consent to sexual activity or the”age of protection” is the age at which a minor can legally consent to sexual activity.
- As of 2008 the age of consent for sexual activity is 16 years.
- All sexual activity without consent, regardless of age, is a criminal offence.
Are there exceptions to the age of consent?
- There are circumstances in which the age of consent is older than sixteen.
- Where the sexual activity is determined to exploits the young person, such as when it involves prostitution, pornography or occurs in a relationship of authority, trust or dependency the age of consent is 18 years.
- As well section 159 of the Criminal Code states that the age of consent for anal intercourse is 18 years.
- This means that anyone who engages in anal sex that is under eighteen years of age is committing a criminal offence.
- This law is widely thought to be discriminatory, specifically against homosexual males.
- Some courts have found that section 159 violates the Canadian Charter of Rights and Freedoms.
- On November 15, 2016 the Minister of Justice introduced a bill that would repeal that provision.
- If section 159 is successfully repealed the age of consent for anal intercourse would as well be 16 years of age.
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What are the Criminal Code’s “close in age” or “peer group” exceptions?
- There are instances when sexual activity between minors under 16 can be legal.
- A 14 or 15 year old can consent to sexual activity with a partner as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person.
- Similarly 12 and 13 year olds can consent to sexual activity with another young person who is less than two years older and with whom there is no relationship of trust, authority or dependency or other exploitation of the young person.
- Where sexual activity occurs with 16 or 17 years olds within a relationship of trust, authority, dependency or where there is other exploitation this can be a criminal offence.
- Exploitation is determined the nature and circumstances of the relationship.
- When determining whether or not an act was exploitive to a 16 or 17 years old the courts consider the age of the young person, the age difference between the young person and their partner, how the relationship developed and how the partner may have controlled or influenced the young person.
- 16 and 17 year olds cannot consent to sexual activity that involves prostitution or pornography.
There are varying child specific offences in the Criminal Code. These offences include the following:
Section 151 Sexual Interference
no one can touch any part of the body of a child under the age of 16 for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
Section 152 Invitation to Sexual Touching
no one can invite a child under the age of 16 to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
Section 153 Sexual Exploitation
no one in a position of trust or authority over a 16 or 17 year old (for example, a teacher, religious leader, babysitter or doctor) or upon whom the young person is dependent, can touch any part of the body of the young person for a sexual purpose or invite that young person to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
Section 155 Incest
no one may have sexual intercourse with their parent, child, brother, sister, grandparent or grandchild. The penalty for this offence is a maximum of 14 years imprisonment;
Section 153.1 Child Pornography
no one may make, distribute, transmit, make available, access, sell, advertise, export/import or possess child pornography. Child pornography is broadly defined and includes materials that show someone engaged in explicit sexual activity who is, or seems to be, under the age of 18 years; or show a young person’s sexual organ or anal region for a sexual purpose. Child pornography also includes written and audio material that encourages others to commit a sexual offence against a child, or is primarily a description of unlawful sexual activity with a child that is intended for a sexual purpose. The penalties for these offences are mandatory minimum periods of imprisonment and vary up to a maximum of either 5 or 10 years;
Section 172.1 Luring a Child
no person may use a computer system, such as the Internet, to communicate with a young person for the purpose of facilitating the commission of a sexual or abduction offence against that young person. This offence is sometimes called “Internet luring”. The penalty for this offence is a maximum of 10 years imprisonment;
Section 173 (2) Exposure
no one may expose their genital organs for a sexual purpose to a young person under the age of 16 years. The penalty for this offence is a maximum of 6 months imprisonment;
Section 170 and 171 Procuring
it is against the law for parents and guardians to procure their child under the age of 18 years to engage in illegal sexual activity or for owners, occupiers or managers of premises to allow a person under the age of 18 to be on those premises to engage in illegal sexual activity. The penalties for these offences include mandatory minimum periods of imprisonment and vary up to a maximum of 10 years imprisonment.
Subsections 286.1(2), 286.2(2) and 286.3(2))Child Prostitution
it is against the law for anyone to offer or obtain the sexual services of a young person under the age of 18 years, to materially benefit from child prostitution or to procure a person under the age of 18 for the purposes of prostitution. The penalties for these offences include mandatory minimum periods of imprisonment and vary up to a maximum of 14 years imprisonment.
Section 160 Bestiality
it is against the law for anyone to engage in sexual activity with an animal, including making a child do this or doing this in front of a child. The penalties for these offences vary up to a maximum of 10 years imprisonment; and,
Subsections 7(4.1) 7(4.3) Child Sex Tourism
It is against the law for a Canadian to travel outside of Canada and engage in any sexual activity with a young person that is against the law in Canada. If the Canadian is not found guilty of committing such a sexual offence in the country where it occurred, the Canadian could be convicted in Canada and would face the same penalty as if that offence had occurred in Canada.
- If you have been charged with any of the above mentioned sexual offences contact Kostman and Pyzer today to lear about the defences that may be available to you!