Legal Definition and Age of Consent in Ontario
The legal definition of the legal age of consent in Ontario is defined by the Criminal Code of Canada. It is a clear definition that does not leave room for interpretation. The age of consent for non-exploitation is 16 years of age. This means that if an adult engages in sexual activity with someone of that age or older, that is 16 or older, there is no crime and both participants are of legal age to have sex with one another. Naturally, there are exceptions to every rule, and in Ontario, there are no exceptions to the 16 age of consent rule. If the participant is of the legal age of consent – 16 – there is no legal recourse on the part of the parents, or legal guardians, for example . There is some interpretation of the law when it comes to a 5 year age difference. In this case, the 17 year old can legally have sex with someone who is up to 21 years old, but no more than that.
Accuracy is key. If you are in Canada, you should follow the following guideline in mind in order to be on the safe side of the law. You also want to keep in mind that these laws may vary from province to province, as well as territory to territory. However, in Ontario, the law is set. Anyone under 16 cannot consent to sexual activity at any time. If they engage in sexual activity with an adult, it is a crime and one that will be prosecuted in the courts.
Historical Revisions to the Age of Consent
In Ontario, the age of consent law has seen substantial evolution over time. Originally codified in British North America Act, 1867 as a crime at common law, the age of consent was 12 for females and 14 for males. In 1892, an amendment brought the age to 16 for both males and females. At the turn of the century, the Criminal Code was further modified to make the offence dependent on the "bad character" of the accused. If the accused was of bad character, there was no defence available, even if the complainant was over the then legal limits to consent, which was 14 for females and 16 for males.
The law was again amended in 1949 to increase the age of consent to 18 years for homosexual males. By the 1980s the age of consent was 16, but homosexuality was not given special protection. Importantly, the provision had moved towards a strict liability defence.
In 2008, the Supreme Court of Canada found the law had been under-inclusive, setting up a new defence for those who were close in age (two years younger) to the complainant, as well as those who had a special relationship of trust with the complainant. The latter defence carried a reverse onus; the accused had to prove he or she had no such relationship with the complainant or that they did not occupy a position of trust over the complainant.
Further changes came in 2012 when the age of consent was criminalized when there was penetration. The rationale behind this change was the higher health risk and likelihood of abuse present in situations of penetration; however, as it stands now, any sexual interference with a person below the legal age is illegal and can attract serious penalties.
Exceptions to the Age of Consent
Authorities have enacted many statutes that provide exceptions to the legal age of consent to sexual activity for young persons. These include:
The Close in Age Exception Under s. 150.1 (2.1) of the Code, the parent or guardian of the older partner must not have been in a position of trust with respect to the younger one, or must not have been in a position of authority with respect to the younger partner. The close in age exception covers a slavement 60 months or 5 years, if the younger partner is between 12 and 13, 72 months or 6 years, if the younger partner is between 14 and 15, 84 months, or 7 years, if the younger partner is between 16 and 17. Couple – Over 12, under 18. If one partner is over 12, and under 18, the other partner must be under 18, and not more than 60 months or 5 years older. Older partner can be a parent or guardian of younger partner, as long as older partner did not use that position of trust to engage him or her in sexual activity. Couple – Between 12 and 14, 16 and 18. If one partner is under 14, and over 12, the other partner must be under 14, and not more than 24 months or 2 years older. Older partner must not have been in a position of authority with respect to younger partner. Couple – Between 14 and 16, 18 and 24. If one partner is between 14 and 16, and the other partner is between 18 and 24, the older partner must not have been in a position of authority with respect to the younger partner. Example: John, age 35 year-old, has been acquitted of child pornography charges. In 2011, John met a 13 year old boy at a bowling alley. They became friends and began to sleep together on average three times a week. Recently, John has been charged with sexual interference, and sexual exploitation, under s 151 and 153 of the Criminal Code. As John was 31 at the time of the offences, he was much older than the complainant. Hence, there was a position of trust, and authority. The defence will present evidence that John was not in a position of trust, or in a position of authority opposite the complainant. The defence may argue that the complainant’s parents trusted John, and permitted the complainant to spend unsupervised time with John for extended periods. The defence may also involve John’s income, and his professional status, which may (or even may not) affirm the absence of a position of authority and/or of trust. The Close In Age "Exemption" vs. the "Use of Authority" Defence The close in age exemption comes into effect in cases where the complainant is between the ages of 12 and 18. The accused must not be more than 5 years older than the complainant, the complainant must be over the age of 12, and the accused cannot be in a position of trust or authority. If the complainant is under 12 there are no close in age exemptions, but the "use of authority" defence may apply. The Use of Authority Defence A person of 18 years or older will not be found guilty of sexual exploitation if it can be proven that he or she did not use the position of authority, trust or dependency "in relation to a complainant who is sixteen years of age or more". The Code does not provide any means of establishing these facts, and the absence of a position of authority must be established on the basis of evidence. Example: John and Mary are 15 year old high school students. They have been sexually active. As a part-time job, Mary begins babysitting John’s infant sister, 2 evenings per week, for 3 hours. When John is home, he and Mary begin to make out, and they engage in oral sex. At some point, John’s parents are away at the bank, while John goes out walking with Mary. Mary refuses to have sex with John, but will continue to make-out with him. Meanwhile, Mrs. Doe returns home, she discovers these events which had occurred before she arrived. If John is charged with sexual exploitation (s.153), he is entitled to present evidence that he had no position of authority or trust over Mary. John was not in a position of trust. John would not be found guilty of sexual exploitation.
Penalties for Violating the Age of Consent
In Ontario, the circumstances surrounding an adult’s failure to obtain the consent of an individual who is under the age of 16 can have serious legal implications. There are a number of offences that fall under this umbrella, including sexual exploitation and invitation to sexual touching. While the age of consent to sexual activity is one thing, there are exceptions in place such as when the individuals are a certain number of years apart (the minimum ages of the couple and whether or not the child is in the same context such as a student-teacher role.) The Criminal Code is very specific and in order to avoid criminal issues , it is important that the laws are taken literally.
Failure to comply with the law may result in a number of penalties including fines, probation, community service, therapy or counselling requirements. If convicted of an offence under any of these laws, you will likely be required to register as a sex offender for many years, with registration required for life in severe cases. Depending on the circumstances, such as your age, health and whether or not there was consent, you may face a maximum of fourteen years in prison. Sentencing will also be affected by any factors including parenting responsibilities. You may also lose your job or otherwise be socially ostracized as a result.
Protective Measures and Resources
In Canada, the age of consent for sexual activity (the "Age of Consent") is 16, meaning, at law and in general terms, it is legal for a person 16 years of age or older to have sex with another person as long as that person is also a minimum age of 16. As noted above, there are numerous examples of when the Age of Consent does not apply. For example, the Age of Consent does not apply when the sexual activity is between a minor and a person in authority (which is a person who has power over a minor for example, a teacher, coach or a supervisor at work). No sexual contact is legal between a minor and a person in authority regardless of age. The Age of Consent may also not apply when a relationship is found to be exploitative (for example, if the adolescent is used by the other person for sexual purposes , or if they are coerced or pressured into sexual activity).
The law that relates to the Age of Consent can be very complicated, and is always specific to the particular circumstances at issue. There are numerous authorities where you can access assistance related to the Age of Consent including Legal Aid Ontario and the Law Society of Upper Canada, or you may consider retaining a lawyer.
1. Legal Aid Ontario runs a variety of legal clinics including, law help centres which offer free legal services, and toll-free services to provide legal information.
2. The Law Society of Upper Canada offers the opportunity to obtain a consultation with a lawyer or paralegal for a fee of $25 plus HST. The lawyer or paralegal who provides the consultation is not required to continue as counsel for your case. Other paid legal services offered by some clinics and community organizations may also be available.