The ‘age of consent’ refers to the age when a person can legally consent to sexual activity. Without consent, sexual activity is a criminal offence, regardless of a person’s age. Laws governing the age of consent apply to all kinds of sexual activity, from sexual touching (including kissing) to sexual intercourse.
Under the Criminal Code, the age of consent for sexual activity in Canada is 16 years. The age of consent was 14 years prior to May 2008, but was raised in the Tackling Violent Crimes Act.
When the type of sexual activity is considered to be exploiting a young person, such as when it involves pornography, prostitution or a position of trust, authority or dependency, then the age of consent is 18 years. Under the law, sexual activity may be viewed as exploitive depending on the circumstances of the relationship, such as the young person’s age, how the relationship developed (for example, over the internet), and other factors.
Currently, the Criminal Code s. 159 specifies 18 years as the age of consent for anal intercourse; however, some courts have ruled that this violates equality rights under Canada’s Charter of Rights and Freedoms. On these grounds, a bill was introduced on Nov 15, 2016 to repeal the provision and to set the age of consent for anal intercourse to be the same as other sexual activity.
The Criminal Code identifies some exceptions to 16 as the ‘age of consent’, specifically, for sexual relationships where the participants are close in age or within the same peer group. For example, a 14-year-old person may consent to sexual activity with a partner who is less than 5 years older, as long as there is no exploitation or relationship of authority, trust or dependency (such as with a coach or teacher). Also, a 12-year-old may consent to have sexual activity with someone who is less than 2 years older, but again, the relationship cannot involve exploitation or a relationship of trust, authority or dependency.
R v. Mr. E.: Accused charged with Sexual Assault involving a Minor
There can be special circumstances where a court may not convict an accused person for having sexual relations with a person below the age of consent, such as when the accused had reason to genuinely believe that the complainant was ‘of legal age’. In R v. Mr. E. (2011), a man was charged with sexual interference (for touching someone under the age of 16) and sexual assault, under the Criminal Code sections 151 and 271, respectively. The only evidence presented in the trial was the witness testimony of the complainant and the accused.
The accused man was 19 years old when he engaged in the first of 3 acts of consensual intercourse with the complainant, who was 12 years old at the time, and he turned 20 before the date of the last incident. The complainant testified that she did, in fact, willingly engage in sexual activity with the man, and also admitted that she initiated the sexual contact. However, under the Criminal Code, the fact that an underage complainant was willing or that it was her idea, does not absolve an accused of a criminal charge.
The accused’s defence to these charges is that he believed the complainant was 16 years old and therefore, not under the legal age of consent. However, the judge declared that the accused’s mistaken belief about the complainant’s age is not an accepted defence, as stated in the Criminal Code s. 150.1(4), unless an accused took all reasonable steps to determine the age of the complainant. This means that “the law allows for a very limited defence based on an honest, but mistaken, belief by the accused about the age of the complainant”. The law requires more than an honest belief; it requires that the accused makes an ‘earnest inquiry’ and takes ‘all reasonable steps’ to find out the complainant’s age. What constitutes ‘reasonable steps’ depends on the circumstances of a specific case. The court cited R. v. Nguyen (1990), where the Supreme Court of Canada stated that “150.1(4) allows a ‘due diligence’ defence if the accused can show that he or she took all reasonable steps to ascertain the age of the complainant”.
Essentially, for the defence to succeed, there must be evidence that the accused made an earnest effort to find out the complainant’s age, or that there were compelling circumstances which prevented the need for an inquiry. If the accused can show such evidence, then the Crown must show beyond a reasonable doubt that the accused person did not take all reasonable steps to find out the complainant’s age.
The complainant’s key evidence, in R. v. Mr. E., was a video interview of her by the investigating RCMP officer, taken not long after the last incident. The judge agreed with defence counsel that the complainant did not appear to have the “the body of a child” and that her appearance at the time of the interview was that of a girl with the anatomical development of someone in her teenage years.
The complainant was 14 years old when she gave her evidence and she was reluctant to testify against the accused. She was very forthright about the fact that she was the one who contacted him and invited him to have sex, and also admitted to sexual relations with other older boys around the same time and stated that “most guys think I’m 18”.
The complainant and accused had never met before she initiated contact with him online through MSN Messenger. However, the accused had seen her around town (with a population of about 1800), sometimes under the influence of alcohol and always with an older group, typically males around his own age.
When the complainant first contacted the accused and invited him to her place, she told him online, that she was 16, but he declined because he didn’t know her well enough. The complainant saw him on the street shortly after and waved to him, and then arrived uninvited to his home during the following evening for sex, after having entered through an unlocked door. Her behaviour was described as quite ‘bossy’ and she instructed him to “go upstairs and have sex”. She also initiated the remaining 2 sexual encounters, via MSN Messenger, and in both cases, insisted on coming to his home. A condom was believed to have been used on all three occasions.
The accused testified that there was nothing causing him to doubt the complainant was 16, and “If I knew right then and there she was 12, I wouldn’t – we wouldn’t even come to talk”. He asserted that he didn’t become aware of her real age until he was arrested.
The judge in this case concluded that the complainant repetitively pursued the accused within the context of presenting herself to him and others as someone much older. The accused consistently saw her in this context both ‘around town’, where she was habitually with older people and also in their personal contact. In this context, the judge rejected the Crown’s argument that the accused should have done more than accept the complainant’s word alone that she was 16. Even if he again asked the complainant her age, the judge suggested that she would have continued to lie, given her persistent interest in sex. The judge concluded that the accused had an honest belief that she was 16 and there was no evidence to suggest otherwise. On these grounds, the judge was left with a reasonable doubt that the accused was guilty, and the accused was acquitted on both charges.
At Kruse Criminal Law, our lawyers have successfully defended many clients on sexual assault charges and we have over 50 years of combined criminal law experience. If you have been detained or charged on a sexual assault offence, contact our office today for expert legal advice and let us get started on building a thorough and effective defence.