What is Consent?
In Canada, the legality of any sexual activity hinges on the voluntary agreement of all parties involved. This is known as “consent.” Engaging in sexual activity without obtaining consent is a criminal offence.
Consent can be commonly expressed verbally or by gesture. For example, saying “yes” is an expression of consent. Consent can also be expressed by actions that indicate agreement, such as nodding of one’s head. Silence or a lack of resistance is not consent. Also, consent must be obtained for each separate act. Just because one party consents to kissing or oral sex does not mean they consent to intercourse.
The Age of Consent
In Canada, Parliament has set the general age of consent at 16 years old. This means that individuals below 16 years old cannot consent to sexual activity.
There are also specific situations where the age of consent is higher. If one person is in a position of trust, authority or power over the other, the age of consent is 18 – not 16. Examples of these kinds of relationships include caregivers, step-parents, babysitters or teachers. This higher age threshold aims to protect younger people from being exploited or coerced into sexual activities by those who may have significant influence or control over them.
Close-in-Age Exceptions
Canadian law recognizes that youths under 16 should be allowed to legally engage in sexual activity. To address this, Parliament has established two “close-in-age” exceptions.
- 14 and 15-year-olds can legally consent to sexual activity with partners who are less than five years older than them.
- 12 and 13-year-olds can legally consent to sexual activity with partners who are less than two years older than them.
However, these exceptions do not apply where one person is in a position of trust, authority or power over the other. This means that a 14-year-old cannot consent to sexual activity with their 18-year-old babysitter, even though the 18-year-old is less than 5 years older. The close-in-age exception does not apply because the 18-year-old is in a position of trust over the 14-year-old as their babysitter.
The close-in-age laws were designed to protect young teenagers from the criminal consequences of engaging in consensual activities with their peers while maintaining safeguards against exploitation by persons in authority or positions of trust or power.
Other Rules on Consent
Each party must obtain consent. There is no obligation on a party to say “no”, to cry for help, or to call the police. Consent is not obtained if:
- Express Denial: A person says or does something to indicate they are not consenting to an activity.
- Withdrawal of Consent: A person shows through words or actions that they do not agree to continue an activity that has already started.
- Incapacity to Consent: A person is incapable of consenting to the activity. For example, they are unconscious or under the influence of drugs or alcohol to the extent that they cannot legally consent.
- Consent for Each Act: A person consents to some sexual acts but not others. For example, a person consents to kissing and oral sex but does consent to intercourse. Consent must be obtained for each separate act.
- Abuse of Power: The consent is obtained through someone abusing their position of trust, power, or authority over the other person.
- Future Act: Consent must be given at the time of the sexual activity. It cannot be obtained in advance.
- Third-Party Consent: A third party cannot consent on behalf of another. For example, even if someone purports to consent to sexual activity on behalf of another person, no consent has been obtained in law. Consent must come directly from the person who will participate in the sexual activity.
- Fraud: A person gives consent when they are misled about important facts, such as the nature and quality of the act, the identity of the party, or the presence of any sexually transmitted illnesses.
- Violence or Threats: A person obtains consent by application of force or threat of the use of force.
Conclusion
Understanding the legal nuances of consent is critical for any sexual offence charge. If you are being investigated or charged with a sexual offence, call the experienced lawyers at Filkow Law for advice.
