In Canada, there is no prohibition against dating a minor who is sixteen years old or younger, provided that the date does not involve any sexual activity. Any sexual activity, ranging from sexual touching to sexual intercourse, with a minor of sixteen years or younger who is more than five years your junior is considered a criminal offence. The age at which a minor can legally consent to sexual activity, otherwise known as the 'age of protection', is defined in Canada. Since 2008, this age of consent for sexual activity has been set at 16 years. Any sexual activity conducted without consent, regardless of the age of the parties involved, constitutes a criminal offence.
If you're facing criminal charges related to sexual activity, seek immediate legal assistance from a criminal defence lawyer for expert guidance and protection of your rights.
Are there exceptions to the age of consent?
In some circ*mstances, the age of consent in Canada is older than sixteen. For instance, if the sexual activity is determined to exploit the young person - such as when it involves prostitution, p*rnography, or occurs in a relationship of authority, trust, or dependency - the age of consent rises to 18 years.
According to section 159 of the Criminal Code, the age of consent for anal intercourse is also 18 years, making it a criminal offence for anyone under this age to engage in anal sex. This law has been widely criticized as discriminatory, particularly against hom*osexual males, leading some courts to find that section 159 violates the Canadian Charter of Rights and Freedoms.
What are the Criminal Code's "close in age" or "peer group" exceptions?
In some instances, sexual activity between minors under 16 can be considered legal. This applies when a 14 or 15 year old gives consent to engage in sexual activity with a partner who is less than five years older and there is no present relationship of trust, authority, dependency, or any other form of exploitation.
Similarly, 12 and 13 year olds can give their consent to engage in sexual activity with another young person who is less than two years older, given that there is no relationship of trust, authority, dependency or other form of exploitation. However, if sexual activity occurs between 16 or 17 year olds within a relationship of trust, authority, dependency, or where there is exploitation, it can still be deemed as a criminal offence.
The determination of exploitation relies on the nature and circ*mstances of the relationship. Factors such as the age of the young person, the age difference between the young person and their partner, how the relationship developed, and how the partner might have controlled or influenced the young person are taken into account when deciding whether an act was exploitive to a 16 or 17 year old.
It should be noted that 16 and 17 year olds cannot give consent to sexual activities that involve prostitution or p*rnography.
Child Specific Offences in Canada
There are varying child specific offences in the Criminal Code. These offences include the following:
Sexual Interference
Under Section 151 of the Criminal Code, it is an offence for anyone to touch any part of a child's body who is under the age of 16 for a sexual purpose. Those found guilty of this offence face a mandatory minimum period of imprisonment which can extend up to a maximum of 10 years.
Invitation to Sexual Touching
Section 152 of the Criminal Code stipulates that it is an offence for anyone to invite a child under the age of 16 to touch him or herself or them for a sexual purpose. The penalty for this offence includes a mandatory minimum period of imprisonment, which can lead up to a maximum of 10 years.
Sexual Exploitation
Section 153 of the Criminal Code constitutes that it's an offence for anyone in a position of trust or authority over a 16 or 17 year old, like a teacher, religious leader, babysitter, or doctor, or upon whom the young person is dependent, to touch any part of the body of the young person for a sexual purpose or invite that young person to touch him or herself or them for a sexual purpose.
This offence carries a mandatory minimum period of imprisonment up to a maximum of 10 years.
Incest
Section 155 of the Criminal Code stipulates that it's an offence for anyone to have sexual intercourse with their parent, child, brother, sister, grandparent, or grandchild. The penalty for this offence is a maximum of 14 years imprisonment.
Child p*rnography
According to Section 153.1 of the Criminal Code, it's an offence for anyone to make, distribute, transmit, make available, access, sell, advertise, export/import, or possess child p*rnography.
Child p*rnography 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 p*rnography 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;
Luring a Child
According to Section 172.1 of the Criminal Code, it's an offence for any person to 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 referred to as “Internet luring” and carries a maximum penalty of 10 years imprisonment.
Exposure
Section 173 (2) of the Criminal Code states that it's an offence for anyone to expose their genital organs for a sexual purpose to a young person under the age of 16 years. Committing this offence can lead to a maximum of 6 months imprisonment.
Procuring
As per Section 170 and 171 of the Criminal Code, it's against the law for parents and guardians to procure their child under the age of 18 years to engage in illegal sexual activity. It's also unlawful 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 can extend up to a maximum of 10 years.
Child Prostitution
Under Subsections 286.1(2), 286.2(2), and 286.3(2) of the Criminal Code, it's unlawful 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. These offences carry mandatory minimum periods of imprisonment and can extend up to a maximum of 14 years.
bestial*ty
According to Section 160 of the Criminal Code, it's 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 can extend up to a maximum of 10 years imprisonment.
Child Sex Tourism
As per Subsections 7(4.1) and 7(4.3) of the Criminal Code, it's 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.
