Jail Time for Statutory Rape in Ontario

Whereas rape is considered any nonconsensual sexual contact, statutory rape is sexual contact with a person under the age of consent, i.e., the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity.

There are some exceptions to the sexual assault laws but, in most cases, if an adult is accused of engaging in sexual contact with a minor under the age of consent, he/she will face a criminal conviction and jail time in Ontario.

Sentencing is on a case-by-case basis as there is no specific legal punishment for statutory rape. The circumstances of each sexual assault case will be considered by the judge when sentencing after a suspect is convicted.

The legal terminology used for sexual offences in Canada may be different from commonly used terms elsewhere. Sexual offences against minors are often called “statutory rape” in the U.S. for instance—but this is not a term used in Canadian criminal law.

Instead, the offence of statutory rape is covered by several sexual assault offences that are described in more detail below. Essentially, any sexual contact with a person under the age of consent may be considered statutory rape.

Most commonly, such cases involve a male adult touching children for sexual purposes. However, females can also be charged with sexual offences against minors in Canada.

No child under the age of 16 can lawfully provide consent for sexual contact with an adult. So, even if the younger person is a willing partner in sexual contact, the adult can be charged with a criminal offence.

If neither partner is an adult, the age difference becomes important when the law defines whether consent can be given or criminal activity has taken place.

The age of consent in Canada is 16 years old. So, if an adult engages in sexual contact with a 15-year-old, this is considered statutory rape as no consent can legally be given.

There are, however close-in-age exceptions under Canadian law:

1. When a child aged 12 or 13 consents to sexual activity with someone who is less than two years older.
2. When a child aged between 14 and 15 consents to sexual activity with someone who is less than five years older.

Depending on the situation, these exemptions may exempt a suspect from prosecution for a crime or act as a defence against criminal charges.

There are some other exceptions to the standard age of consent rules in Canada. For instance, the age of consent is raised to 18 from 16 if any of the following apply:

• The older party is in a position of authority or trust over the minor
• The younger party is in a position of dependency with the older person
• The relationship is exploitative

Positions of authority, trust, and dependency include teachers and students, sports coaches and players, babysitters and children, etc.

The Canadian Criminal Code makes it a criminal offence to touch any part of the body of a person under the age of 16 for a sexual purpose, except in the limited circumstances outlined above.

So, any adult who is accused of touching, interfering with or having sex with a person under the age of consent faces criminal charges and jail time in Ontario.

With the exceptions applied, however, if a person is charged with an offence against a 12-year-old but is under the age of 14, the defendant can claim consent to the activity if he/she was not in a position of trust or authority toward the complainant, no relationship of dependency existed, and the relationship was not exploitative. The same applies if the complainant is at least 14 years of age but under the age of 16 years and the defendant is less than five years older.

Statutory rape is considered a hybrid offence in Canada. This means that it can be prosecuted either as an indictable offence or a summary offence, depending on the circumstances of the case.

If prosecuted as an indictable offence, statutory rape attracts a mandatory minimum sentence of imprisonment for one year and a maximum sentence of 14 years.

If prosecuted as a summary offence, the mandatory minimum sentence is 90 days and the maximum sentence is two years less a day.

For anyone convicted of statutory rape, the impact extends beyond a jail term. As well as the reputational damage and registration on the sex offender’s registry, there may be implications for future employment, travel outside Canada, immigration status, and more.

“Statutory rape” is a term not generally used in Canadian criminal law—though it is used widely in discussions about sexual offences against minors and sexual assault.

In fact, there is a series of sexual offences against minors that are treated very seriously and these are considered equivalent offences to statutory rape in Canada. They include the following:

Sexual interference

This offence involves any sexual contact with a person under the age of consent (generally 16 years old).

Sexual exploitation

This offence involves sexual activity with a person under 18 years old where there is a significant power imbalance or the accused is in a position of authority or trust over the minor.

Invitation to sexual touching

This offence involves inviting, counselling or inciting a minor to engage in any form of sexual touching.

Statutory rape or one of its equivalent offences in Canada applies the strict liability standard.

For many offences, “mens rea” or “criminal intent” is required to prove that a criminal offence has been committed. Statutory rape requires no such criminal mind element to be proven for a guilty verdict to be handed down. In other words, there is no intent requirement with this offence.

Under the strict liability standard, if the offence is proven to have occurred and no valid defence exists, the defendant will be found guilty of the act. A defence of ignorance about the other individual’s age or mistaken belief in consent may not be valid in these cases.

For legal advice about a statutory rape charge, speak to one of our criminal defence lawyers in Ottawa during a free consultation.