The first and most important thing to know is that any and all sexual activity requires consent from your partner. If your partner does not consent to intercourse or any other touching, age is irrelevant to whether or not you are criminally liable.
The age of consent, or the “age of protection” is the age at which a young person can legally consent to sexual activity. In Canada that age is 16 years old. This means that as long as someone is 16 years old and the sexual activity is consensual, there is no criminal liability. Sexual contact with anyone under this age may be criminal, subject to a few exceptions.
The reality of growing up is that sometimes teenagers will have consensual sexual activity with one another. Our society does not want these teenagers to have criminal records for this activity, so there is a “close-in-age” exception. If someone is under 16 years old, they can have sex with someone within 5 years of their age. So, for example, a 14 year old can have sex with someone up to 18 years old (as long as the age gap is less than 5 years). 12 and 13 year olds can also consent to sexual activity, but only if their partner is less than 2 years older. So, for example, a 13 year old can only have sex with a 14 or 15 year old, but NOT someone 16 years old or older.
There is one other exception. While the age of consent is 16, the Criminal Code still protects 16 and 17 year olds against sexual exploitation. While 16 and 17 year olds can consent to sex, they can only do so when their partner is not relying on their trust, authority or dependency to obtain that consent. Each relationship will be assessed differently, but will factor in 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. This provision is in place to ensure that consensual relationships are truly consensual. Similarly, 16 and 17 year olds cannot consent to prostitution or pornography, as each of those is viewed to be exploitative.
What about homosexuality? Section 159 of the Criminal Code states that the age of consent for sexual intercourse is 18 years. However, this law has been deemed unconstitutional and discriminatory, and has not been enforced since 1992. In November 2016 the Minister of Justice introduced a bill to remove the provision from the Criminal Code.
If you have any questions about the legality of your relationship or a relationship you’re aware of, feel free to give us a call.
Ron Ellis is a criminal defence lawyer based in London Ontario.