What is the age of consent in Canada?

What is the age of consent in Canada?

The age of consent is when a young person can legally agree to sexual activity. Consent applies to all forms of sexual activity, ranging from kissing and fondling to sexual intercourse.

All sexual activity without consent is a criminal offence, regardless of age.The age of consent in Canada is 16. In other words, a person must be at least 16 years old to be able to legally agree to sexual activity.

But there are exceptions, on both sides of 16.

What is consent?

According to the Criminal Code, consent is the “voluntary agreement of the complainant to engage in the sexual activity in question.” It goes on to explain that consent cannot be given if the complainant:

• is unconscious;
• incapable of consenting to the activity;
• was induced to engage in the activity by a person who was abusing a position of trust, power or authority; or
• expressed, by words or conduct, a lack of agreement to engage in the activity.

Consent is often described as an ongoing process, that can be expressed verbally or through body language, and it can always be withdrawn. A person may allow someone to kiss them but it does not mean they have given consent for further sexual activity.

As Ottawa Public Health notes, consent “is a one-time-only agreement. Just because someone agreed to engaging in sexual activity on Saturday does not mean they have already given their consent to sex on Tuesday.”

It adds that “nothing makes consent automatic – being in a committed relationship doesn't give anyone the right to not seek consent.”

Consent under the age of 16

Consent can be given if the two people involved fit the close-in-age exceptions outlined in the Code. It states that 12- and 13-year-olds can consent to sex with someone with a two-year age difference. When it comes to 14- and 15-year-olds, they can consent to sex with someone within five years of their age.

These exceptions only apply if the older person is not in a position of authority or trust and there is no exploitation or dependency.

Consent under the age 18

If the sexual activity "exploits" the young person the age of consent is 18. That is when it involves pornography or prostitution, or if it occurs in a relationship of authority, trust or dependency. Those would include relationships with a teacher, coach or babysitter.

Courts uphold the need for consent

In January 2024, a man was sentenced to three years in prison after failing to gain consent for sexual intercourse from his wife.

According to the Ontario Court of Justice decision, the two were in a struggling marriage in 2021 when the offences took place. The couple was living together but sleeping separately.

"When the incidents occurred, the marriage was clearly failing," the court decision states. On the night in question, the wife invited her husband into the bedroom and “he took advantage of that situation and proceeded to have vaginal intercourse … twice without her consent.”

His lawyer argued that he genuinely believed he had consent, as his then-wife didn’t say no and “there was no indication that she was unwilling to participate.”

The judgment notes that the man mistakenly took the woman’s silence as consent.

“He took the invitation to come to the bedroom, the mutual kissing and the lack of complaint about the touching as an invitation to engage in intercourse,” according to the judgment. “He was not entitled to do so unless [she] clearly and unequivocally communicated to him – by words or conduct – that she wanted to so engage. He did not take reasonable steps to obtain this clear and unequivocal communicated consent.

”The decision also included a reminder about the importance of obtaining consent in all sexual encounters.

"As has been stated often by sentencing courts, but bears repeating, women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact," the judge wrote.

"All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact."

History of consent in Canada

According to a government report, “Canada has a long history of prohibiting sexual intercourse with young females, regardless of their consent. Only girls under 12 were absolutely unable to consent to sexual intercourse until 1890, when the age limit was raised to 14.”

When the Criminal Code was introduced in 1892, the strict prohibition against sexual intercourse was retained for girls under 14 (not married to the accused) and the law was strengthened to make an accused’s belief about the young woman’s age irrelevant,” the report states.

“That age limit has not changed and remains in place today, with narrow exceptions for consensual activity between young persons less than two years apart in age,” it explains.

The report states that the “seduction of a girl over 12 and under 16 ‘of previously chaste character’ was made an offence in 1886. The offence was retained in the 1892 Criminal Code, in respect of girls between 14 and 16, and remained in force until 1920, when … the question of who was more to ‘blame’ became an issue that could lead to acquittal but the offence remained in force until 1988”

In 2008, the age of consent for non-exploitative sexual activity was raised to 16. The age of consent was raised to 18 for anal intercourse and exploitative sexual activity, which includes prostitution, pornography, and situations where one individual is in a position of authority over the other individual.

Contact me for assistance

Allegations of sexual assault can devastate anyone’s career and community standing and could even lead to imprisonment if you are convicted. If you are under investigation or charged, contact me before speaking with police. I offer free consultations in French or English to those in the Ottawa region.