Description of Canadian Policies Related to Sexual Consent

To start off our discussion of policies related to consensual sex, I will provide a brief definition of consent followed by descriptions of current relevant Canadian policies.

According to Canadian legislation, consent to sexual activity is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Under law, consent is not obtained where:

• the agreement is expressed by the words or conduct of a person other than the complainant
• the complainant is incapable of consenting to the activity
• the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
• the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, or
• the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity

On May 1, 2008, the age of consent in Canada was raised from 14 to 16 years of age as part of the Tackling Violent Crime Act.

The act of touching any person under the age of 16 years for a sexual purpose is considered a crime under Section 151 of the Criminal Code of Canada. Section 153 extends to prohibit the sexual touching of a person under 18 by a person in three circumstances: if he or she is in a "position of trust or authority" towards the youth, if the youth is in a "relationship of dependency" with him or her, or if the relationship is "exploitative".

For those under the age of 16, two factors determine where consent to sexual activity can be obtained lawfully between two individuals: age and form of sexual activity.

For example, an individual at 12 or 13 years of age can consent to sexual activity with an individual no more than 2 years older than them. A youth of 14 or 15 years of age can consent to sexual activity with an individual no more than 5 years older, or to whom they are married. Neither of these exceptions applies under any of the 3 circumstances described in Section 153 of the Criminal Code.

Curiously, Section 159 of the criminal code sets the age of consent for anal intercourse at 18, with the only exception being if the two partners are married. This means that no unmarried persons under the age of 18 can legally consent to anal intercourse. I should also note that the section refers to anal intercourse between “husband and wife”, and therefore is not inclusive of individuals in same-sex marriages. Furthermore, the provinces of Ontario (1995) and Quebec (1998) have determined this section of the criminal code to be unconstitutional.

- L. T.