The age of consent when it comes to sexual relations
By Matthew Deshaye
The age of consent is when a young person can legally agree to sexual activity, ranging from kissing and fondling to sexual intercourse. A person under the age of consent cannot agree to sexual activity unless they fall into the close-in-age groups defined below.
Any form of sexual activity without consent is a crime in Canada, regardless of age.
Sexual consent is not to be confused with the current debate in Alberta about whether parental consent is needed for a child to change their name and pronouns at school.
Close-in-age exceptions
While the age of consent in Canada is generally 16, the Criminal Code does allow some exceptions when it comes to the age when a young person can have sex.
It states that 12- and 13-year-olds can consent to sex with someone up to two years older. When it comes to 14- and 15-year-olds, they can consent to sex with someone within five years of their age.
It must be stressed that these exceptions only apply if the older person is not in a position of authority or trust and there is no exploitation or dependency between the two parties.
The age of consent can rise to 18
A 16- or 17-year-old cannot consent to sexual activity in three different circumstances, according to the Department of Justice (DoJ):
- If a sexual partner is in a position of trust or authority, such as a teacher or coach;
- If the young person is dependent on their sexual partner, for example for care or support; or
- If the relationship between the young person and their sexual partner is exploitative, such as for prostitution or to produce pornography.
The DoJ states various factors will be taken into account when determining whether a relationship is exploitative. Those include the young person's age and the age difference between them and their partner, how the relationship developed (for example secretly or over the internet) and whether the partner may have controlled or influenced the young person.
What is consent?
According to the Criminal Code, consent is the “voluntary agreement of the complainant to engage in the sexual activity in question.” It goes on to explain that consent cannot be given if the person is unconscious or incapable of consenting to the activity, perhaps due to drugs or alcohol.
The Alberta government notes that consent:
- is a process, not an event;
- is an ongoing conversation;
- is mutual and voluntary;
- can never be obtained through threats or coercion;
- is specific – agreement to one form of sexual activity does not imply agreement to other forms or circumstances;
- can be withdrawn at any time; and
- should never be assumed or implied even in close romantic relationships.
“Consenting to one kind of sexual activity does not automatically mean consenting to another,” the government adds.
The Calgary Police Service notes that “consent must always be freely given. Consent requires a conscious, operating mind, capable of granting, revoking, or withholding consent to each and every sexual act.”
The Edmonton Police Service offers tips to avoid any activity that may be considered a sexual assault. They include:
- Ensure your partner consents to any sexual activity.
- Ensure your potential partner is of legal age, as “ignorance is no defence.”
- Talk with the other person about what they are comfortable doing.
- Be careful when using drugs and alcohol. People under the influence of intoxicants may interpret situations differently later. Intoxicants can also influence memories of how events occurred.
- Communicate your expectations to a potential partner to avoid unwanted situations.
- Listen to your partner and don’t make assumptions.
Canadian equivalents to statutory rape
The American legal system uses the term “statutory rape” to describe a sexual act with someone under the age of consent. That term is not found in our Criminal Code though equivalent offences are generally categorized under the broader umbrella of sexual offences against minors.
These include:
- Sexual interference: Any sexual contact with a person under the age of consent.
- Sexual exploitation: Any sexual activity involving a person under 18 years old where there is a significant power imbalance or the perpetrator is in a position of authority or trust over the minor.
- Invitation to sexual touching: Inviting, or counselling a minor to engage in any form of sexual contact.
If any of these charges are treated as an indictable offence, the maximum penalty is a 14-year prison term with a mandatory minimum sentence of one year in jail.
Anyone can be charged with consent-related crimes
Males and females of any age can be charged if they have sexual relations with someone under the age of consent. For example, a 65-year-old woman was convicted in 2023 in a Calgary court of having a years-long sexual relationship with a teenage boy in the 1990s.
According to the Court of King’s Bench judgment, the woman was 31 years old when she began having sex with a 14-year-old while he was living at a residential facility in Edmonton run by Alberta Child and Family Services.
Eight years after the first sexual encounter, during which time they were still getting together, the woman went to Edmonton police, saying he had threatened her with violence, court documents state. In July 1998, she submitted a 26-page handwritten statement to Edmonton police about their relationship, with the file sitting dormant for 24 years. The woman was eventually convicted of sexual exploitation in Calgary in 2023.
Contact us for assistance
A conviction for any sex-related crime will likely result in a period of incarceration, along with the social stigma that accompanies it. If you, a friend or a family member have been charged with such a crime you need competent and experienced legal representation as the case winds through the judicial system. The lawyers at Dunn & Associates embrace progressive advocacy to achieve the best results for our clients. We know what works well and what does not when it comes to defending against different types of charges. Contact us for a free consultation.