‘Age of consent’ laws dictate the age at which a young person can legally agree to sexual activity. These laws apply to any form of sexual activity, including kissing and touching. Violating these laws is considered statutory rape, a serious crime in Canada that can lead to significant consequences. Learn about the legal age of consent in Ontario, ‘close in age’ exceptions, the defence of an honest mistaken belief in age, and the importance of being represented by a skilled criminal defence lawyer.
What is the Age of Consent in Ontario?
The legal age of consent in Ontario, like any province in Canada, is 16 years old. However, the age of consent may be 18 years old in cases where the older person is in a position of trust or authority towards the young person, if the young person is in a relationship of dependency with the older person, or if the relationship is exploitative of the young person.
Close in Age Exceptions in Ontario
In Canada, there are some exceptions to age of consent laws. These are known as the “close in age” exceptions, set out in sections 150.1(2) and 150.1(2.2) of the Criminal Code of Canada:
S. 150.1(2): Exception for a 12 or 13-year-old
A 12 or 13-year-old may legally engage in sexual activity with someone who is less than two years older than them. This means that a 12-year-old may legally engage in sexual activity with someone who is up to 13 years old, and a 13-year-old may legally engage in sexual activity with someone who is up to 14 years old.
S. 150.1(2): Exception for a 14 or 15-year-old
A 14-year-old or a 15-year-old may legally engage in sexual activity with someone who is less than five years older than them. This means that a 14-year-old may legally engage in sexual activity with someone who is up to 18 years old, and a 15-year-old may legally engage in sexual activity with someone who is up to 19 years old.
In all cases, the ‘close in age’ exception does not apply in cases where the older individual is in a position of trust or authority towards the younger individual, the younger individual is in some way dependent on the older individual, or the relationship is exploitative of the younger individual. For example, a 14-year-old may legally consent to sexual activity with an 18-year-old, but not if the 18-year-old is their babysitter or coach.
What is Statutory Rape?
While Canadian law doesn’t explicitly use the term “statutory rape,” this term is typically used when someone engages in willing sexual activity with a person under the age of consent. In other words, statutory rape occurs when someone violates the age of consent laws, and the ‘close in age’ exceptions do not apply. As stated in s. 150.1(1) of the Criminal Code of Canada, it is NOT a defence that the young person may have consented to the activity.
Offences that may be considered statutory rape are set out in the Criminal Code, including sexual interference (s. 151), invitation to sexual touching (s.152), and sexual exploitation (s. 153).
S. 151: Sexual interference
Sexual interference is defined in the Criminal Code as touching, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years for a sexual purpose.
S. 152: Invitation to sexual touching
Invitation to sexual touching is defined in the Criminal Code as inviting, counseling, or inciting a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who incites the touching and the body of the person under 16 years of age, for a sexual purpose.
S. 153: Sexual exploitation
When a person is in a position of trust or authority towards a young person, is a person with whom a young person is in a relationship of dependency, or is in an exploitative relationship with a young person, the age of consent is raised from 16 years of age to 18 years of age.
Sexual exploitation of a minor occurs when a person in any of the situations described above engages in any sort of sexual activity with a person under 18 years of age.
What is an exploitative relationship?
Section 153(1.2) of the Criminal Code of Canada outlines the factors that a judge will consider when determining whether a relationship is exploitative of the young person. The judge will look to the nature and circumstances of the relationship, including:
(a) the age of the young person;
(b) the age difference between the person and the young person;
(c) the evolution of the relationship; and
(d) the degree of control or influence by the person over the young person.
Defending Against Statutory Rape Charges
The ‘mistake of age’ defence
In Ontario, as in all of Canada, the best defence against statutory rape charges is the defence of an honest but mistaken belief that the young person was over the age of consent.
R v Hason explains that this defence has two elements: (1) the accused person honestly believed that the young person was over the age of consent at the time of the alleged offence, and (2) the accused person took all reasonable steps to ascertain the young person’s age. As long as the accused person can show that there is an air of reality to both of these elements, it is up to the Crown to prove beyond a reasonable doubt that either element is lacking (para 35).
Assessing a young person’s appearance will rarely be enough to fulfill the ‘reasonable steps’ requirement, because a reasonable person would understand that underage people can look older than they are (para 44). Additionally, the mere fact that a young person was drinking, smoking, using drugs, or engaging in sexual activity will not generally be enough to fulfill the requirement (para 45). Reasonable steps may include obtaining “more reliable indicators of age, such as attendance at adult-only social events, graduation from high school, employment, or the ability to drive” (para 46).
Any applicable Charter Defences
The Charter sets out a person’s rights and freedoms before and after their arrest. If the police in some way violated a person’s Charter rights before or after their arrest, it could lead to the exclusion of evidence that the Crown is relying on to secure a conviction, in accordance with s. 24(2) of the Charter.
Consequences of a Conviction
Sexual interference, invitation to sexual touching, and sexual exploitation are serious crimes that carry serious consequences upon a conviction, per sections 151, 152 and 153 of the Criminal Code. These are hybrid offences, meaning that the Crown has the discretion to proceed summarily or by indictment. The Crown decides how to proceed based on facts like the seriousness of the accused person’s actions and the harm caused.
If the Crown decides to proceed with a summary conviction, a person found guilty of any of these offences faces a mandatory minimum of 90 days in prison and a maximum sentence of two years less a day. If the Crown decides to proceed by way of indictment, a person found guilty of any of these offences faces a mandatory minimum of one year in prison and a maximum sentence of 14 years.
Additionally, anyone who is found guilty of statutory rape in Ontario, including sexual interference, invitation to sexual touching, and sexual exploitation, may be ordered to register with the Ontario Sex Offender Registry and the National Sex Offender Registry.
What to Do if You Have Been Charged with a Sexual Offence
Sexual offences such as statutory rape can have grave consequences if you are convicted. As soon as you have been charged with a sexual offence, you should contact a criminal defence lawyer. Prioritize a lawyer with a proven track record of successful outcomes in statutory rape cases. A good criminal defence lawyer can help secure your release on bail with the least stringent conditions, communicate with the prosecution to try to resolve the case in your best interest, and build a strong defence on your behalf.
