The age of consent is the legal age at which an individual is considered capable of making an informed decision about whether to engage in sexual activity.
Depending on certain other circumstances, any sexual activity with any individual who is under the age of consent at the time may be considered a sexual offence and punishable under the criminal justice system of Canada.
What is the age of consent in Ontario?
The standard age of consent in Ontario (or any other Canadian province or territory) is 16.
However, the age of consent is higher in some circumstances. One example is if the accused has a relationship of trust, authority, or dependency with the individual in question.
What does consent to sexual activity mean?
The age of consent laws refers to the age at which a person can legally agree to sexual activity. So, the laws apply to any type of sexual activity, including kissing and fondling. In other words, the laws are not limited to sexual intercourse but cover a wide range of behaviours.
In Canada, any sexual activity without consent is a criminal offence with harsh punishments for convictions, including mandatory minimum penalties.
“Close in age exceptions” in Canada
There are certain exceptions to the age of consent laws that apply in very specific cases.
For example, if a minor aged 14 or 15 years old engages in sexual activity with a partner who is less than five years older, it may be considered legal (i.e., the child may be considered to have provided legal consent). There is an important caveat though: this law only applies if there is no relationship of trust, authority or dependency or any other exploitation of the minor.
For instance, if a 14-year-old and an 18-year-old in a boyfriend-girlfriend relationship have sexual intercourse, it may be considered legal. However, if the 18-year-old was the child’s coach or had been specifically asked to look after the minor, the exception would likely not apply.
There is even a “close in age” exception for 12- and 13-year-olds in Ontario, which surprises some people. Namely, a 12- or 13-year-old can consent to sexual activity with a partner as long as the partner is less than two years older. Again, any relationship of trust, authority or dependency or any other exploitation of the minor nullifies the exception.
What is considered exploitation?
The sexual exploitation of a child occurs if a minor engages in sexual activity and any of the following applies:
- Their sexual partner is in a position of trust or authority towards them, e.g., a teacher or coach.
- The young person is dependent on their sexual partner, e.g., for care or support.
- The relationship between the young person and their sexual partner is exploitative.
In these cases, there can be no legal consent to sexual activity.
To assess whether a relationship is exploitative, judges in Ontario will consider many factors, including the minor’s age, the age difference with the partner, how the relationship developed and whether the partner controlled or influenced the minor in any way.
What is statutory rape?
Statutory rape is considered a serious crime in Canada and is defined as any sexual contact with a person under the age of consent.
As noted above, in cases where a person has sex with another individual under the age of consent, the underage person cannot legally give consent (except in exceptional circumstances) and statutory rape charges against the perpetrator could follow.
A conviction could lead to a jail or prison sentence, even if the younger person is a willing partner. This could even apply if neither partner is an adult, especially if exploitation of the younger individual had occurred.
Note that if one of the parties is physically incapacitated or mentally disabled, all sexual intercourse may be considered statutory rape because such individuals are unable to give legal consent.
What is the best defence against statutory rape charges?
There may be several defences available against a statutory rape charge. One of the most commonly argued defences is the “honest belief in consent” defence.
To be successful, the defendant must:
- Provide evidence of an honest belief that the complainant consented to the sexual activity, and
- Demonstrate that reasonable steps were taken to make sure the complainant was consenting, and
- Prove that the belief was “reasonable.”
The “honest belief in consent” defence will not be successful unless each of the above three points is suitably addressed. If, for instance, the defendant acted with willful blindness (i.e., he/she did not check consent) or failed to take reasonable steps to confirm consent because he/she was intoxicated, the defence will likely fail.
What should you do if you have been charged with a sexual offence?
A charge for any sexual offence comes with the potential for jail time, a lifelong criminal record and mandatory registration on the Ontario Sex Offender Registry. There can also be significant reputational damage — even if the complainant’s accusations are untrue.
In most cases, it is best to consult with a sexual offence lawyer who has experience in this type of criminal case. Your defence lawyer can help secure your release with the least stringent bail conditions and then start preparing a defence based on the available evidence.
Even if the complainant decides to withdraw the accusations, the Crown prosecution may still decide to proceed with the charges. If the case proceeds, the trial may not take place for 6-12 months, during which time your lawyer will communicate with the prosecution on your behalf to see whether the matter can be resolved in your best interests.
If a trial is necessary, testimony from the accused and the complainant will likely be used to determine if the sexual activity was consensual. This may be the key evidence in the trial.
For the best possible chance of successfully defending a sexual offence charge, speak to one of Affordable Defence’s criminal lawyers, located in Ottawa, for a free consultation.