PRB 99-3E
CANADA'S LEGAL AGE
OF CONSENT
TO SEXUAL ACTIVITY
Prepared by Marilyn Pilon
Law and Government Division
25 January 1999
TABLE
OF CONTENTS
LEGISLATIVE
HISTORY
A.
Early Criminal Code Offences
B.
Bill C-15
CURRENT
LAW
PENALTIES
(OLD AND NEW)
POLICY
CONSIDERATIONS
A.
In Support of the Status Quo
B.
In Support of Raising the Age of Consent
PROPOSED
LEGISLATIVE AMENDMENTS
CONCLUSION
CANADA'S LEGAL
AGE OF CONSENT
TO SEXUAL ACTIVITY
This paper will review the
origins of the current "age of consent" laws in Canada and discuss
some of the arguments for and against raising the legal age for consent
to sexual activity from 14 to 16.
LEGISLATIVE
HISTORY
The history of age of consent
laws in Canada has evolved considerably in the past century so that the
existing Criminal Code prohibitions against sexual contact with
children bear scant resemblance to those that were in place as recently
as 20 years ago.
A.
Early Criminal Code Offences
As pointed out in the 1984
Badgley Report on Sexual Offences Against Children, 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.
With the advent of the Criminal Code 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 accuseds
belief about the young womans age irrelevant. 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.
Over time, the Canadian
criminal law also provided qualified protection from sexual exploitation
for females over 14. For example, the Badgley Report notes that
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 offence was changed to prohibit "sexual intercourse."
After 1920, 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 addition to those offences
reviewed above, the "seduction" of a female under 18 "under
promise of marriage" was made an offence in Canada in 1886 and amended
in 1887 to apply to females under 21. In 1920, the offence of "seduction"
(without reference to promise of marriage) was made applicable to girls
"of previously chaste character" between 16 and 18.
From this it will be seen
that a complete ban on sexual intercourse never did apply to girls over
14.
B.
Bill C-15 (1)
Amendments to the Criminal
Code in 1988 repealed the aforementioned unlawful intercourse and
seduction offences. In their place, Bill C-15 created new offences called
"sexual interference" and "invitation to sexual touching"
that now prohibit adults from engaging in virtually any kind of sexual
contact with either boys or girls under the age of 14, irrespective of
consent. Introduced at the same time, the offence of "sexual exploitation"
also makes it an offence for an adult to have any such contact with boys
and girls over 14 but under 18, where a relationship of trust or authority
exists between the adult and child.
A number of documents and
publications published prior to those 1988 Criminal Code amendments
suggest a variety of reasons for those changes in the law. Most often
cited was the perceived unequal treatment of boys and girls, since the
earlier offences related strictly to female victims. Furthermore, the
offences of unlawful sexual intercourse did nothing to protect young women
from other forms of sexual contact short of intercourse. The lack of protection
for girls between 14 and 16 who were not of chaste character or who were
found more to blame for an offence was also seen as a serious limitation
on the laws ability to protect young women from pregnancy or to
maintain standards of morality, assuming that was the motivation behind
it. The kind of scrutiny that a complainant might face in testing the
proof of her chaste character no doubt also contributed to the fact that
few charges were being laid under that provision prior to its repeal.
The Law Reform Commission
of Canadas Working Paper 22 recommended the repeal of the
seduction offences relating to young women over 18 and under 21 because
they assumed "a general sexual immaturity among women" and attributed
to men "the sole responsibility for making sexual decisions."
The Commission said those were incorrect and unjust assumptions that should
not be reflected in the criminal law. However, the Working Paper took
a different view of the unlawful intercourse offence relating to those
under 16. In addition to supporting the retention of a "total prohibition"
of sexual intercourse with female persons under the age of 14, the Law
Reform Commission expressed the view that intercourse between adults and
young persons under 16 should continue to be prohibited by the criminal
law. Nevertheless, the Commission recommended repeal of that offence on
the grounds that the offence of contributing to juvenile delinquency was
a better prohibition that accomplished the same thing in a gender-neutral
way. It must be noted that contributing to delinquency has not been a
criminal offence since the Juvenile Delinquents Act was repealed
and replaced by the Young Offenders Act in 1984.
In summary then, except
for the offences of buggery and gross indecency, the age of consent for
sexual activity has at no time been set higher than 14 in Canada, although
prior laws did make men vulnerable to prosecution for sexual intercourse
with a girl under 16, 18, or even 21 in certain qualified circumstances.
As noted above, the 1988 amendments to the Criminal Code
repealing those provisions were contained in Bill C-15, which was introduced
by the then Justice Minister, Ramon Hnatyshyn. Although a bill introduced
in 1981 by previous Justice Minister Jean Chrétien had also proposed the
repeal of the seduction offences, it would have retained a broader, gender-neutral
version of the prohibition against sexual activity with a young person
between 14 and 16. However, Bill C-53 was never passed and a later version,
in the form of Bill C-127,(2)
brought about significant changes to the criminal law in the area of sexual
offences but did not specifically address the sexual exploitation of young
persons.
CURRENT
LAW
The Criminal Code
does not now criminalize consensual sexual activity with or between persons
14 or over, unless it takes place in a relationship of trust or dependency,
in which case sexual activity with persons over 14 but under 18 can constitute
an offence, notwithstanding their consent. Even consensual activity with
those under 14 but over 12 may not be an offence if the accused is under
16 and less than two years older than the complainant. The exception,
of course, is anal intercourse, to which unmarried persons under 18 cannot
legally consent, although the Ontario Court of Appeal has struck down
the relevant section of the Criminal Code.(3)
PENALTIES
(OLD AND NEW)
Prior to passage of Bill
C-15, section 153(1) of the Criminal Code made it an indictable
offence for any male person to have sexual intercourse with a female under
14 who was not his wife, whether or not he believed she was at least 14;
the maximum penalty upon conviction was life imprisonment. Males under
14 were exempted from liability for this offence. Sections 151 and 152
now prohibit virtually all kinds of sexual contact with children under
14 and the defence of consent is unavailable for those offences as well
as for any sexual assault offences in respect of both male and female
victims under 14. The maximum available penalty for "sexual interference"
or "invitation to sexual touching" is ten years for those prosecuted
by way of indictment.
Also prior to Bill C-15,
a male person who had sexual intercourse with a female not his wife who
was over 14 but under 16, and "of previously chaste character,"
was guilty of an indictable offence, and liable to a maximum of five years
imprisonment, whether or not he believed she was 16. Consent was not specifically
precluded as a defence, however, and failure to prove that the accused
was more to blame than the female person could result in acquittal. Once
again, males under 14 were not open to prosecution for this offence. Section
153 now prohibits "sexual interference" or "invitation
to sexual touching," in respect of a young person over 14 but under
18, where the accused is in a relationship of trust or authority towards
the complainant or the complainant is in a relationship of dependency
with the accused. Previous sexual experience and/or consent are no longer
relevant where this special relationship exists. The maximum available
penalty is five years imprisonment for those prosecuted by way of
indictment.
POLICY
CONSIDERATIONS
Because different individuals
will reach physical and/or psychological maturity at different times,
setting an age under which individuals cannot validly consent to sexual
activity is an exercise that will be arbitrary to some extent. However,
the public and the courts have thus far accepted that it is also a valid
exercise of Parliaments legislative powers.
For example, in 1978, the
Law Reform Commission of Canada said that, because children under 14 "may
not have the experience or the maturity to make decisions in their own
best interests about their own sexuality, a case can reasonably be made
to prevent their exposure to sexual activity regardless of their purported
consent."(4) Because
of the potential for physical and emotional harm from such experiences,
the Supreme Court of Canada has also accepted that protecting female children
from premature sexual intercourse "is a pressing and substantial
concern."(5)
The 1986 Badgley Report
also agreed that "society has a vital interest in ensuring that its
naturally weaker members are protected by legal safeguards against the
naturally stronger, and particularly, that the welfare and advantage of
its children and youths will be protected and fostered." However,
the same Report noted that "perhaps the most difficult legal issue
is whether the criminal law strikes an appropriate balance between protecting
children from sexual abuse and exploitation, on the one hand, and permitting
the sexual expression of young persons as they proceed through adolescence
into young adulthood, on the other."
A.
In Support of the Status Quo
Perhaps the strongest policy
argument against raising the age of consent from 14 to 16 is that it would
place unprecedented limits on the sexual freedom of young persons. Hence,
proponents of such a change may be challenged to provide empirical evidence
demonstrating that adolescents under 16 are being sexually exploited or,
alternatively, that the incidence of pregnancy or sexually transmitted
diseases among that age group calls for an expansion of the existing prohibitions.
It must be noted that simply raising the age of consent to 16 would criminalize
sexual activity between adolescents that is now legal. Because the modern
sexual assault provisions of the Criminal Code no longer depend
upon proof of intercourse, such an amendment could allow a 16-year-old
to be prosecuted for virtually any sexual contact with a 15-year-old boyfriend
or girlfriend.
B.
In Support of Raising the Age of Consent
Concerning the sexual activity
of those between 14 and 16 years of age, the Law Reform Commission of
Canada expressed the view in 1978 that "the state and the public
have an interest in controlling the sexual behaviour in this age group."(6)
Furthermore, the Commission made clear that it was in favour of retaining
gender-neutral protection for this group, if necessary through an amendment
to the Criminal Code targeting adults who contribute "through
sexual interaction, to the delinquency of young persons under the age
of sixteen."(7)
Other groups have also made
recommendations for raising the age of consent because of concerns about
the potential for sexual exploitation of young persons by adults. For
example, in its submission to the Standing Committee on Justice and Legal
Affairs during consideration of Bill C-27,(8)
the Canadian Association of Chiefs of Police urged the federal government
"to define 18 years and over as the age of consent for sexual encounters
with adults." Similarly, during the four-year review of Bill C-15,
Citizens Against Child Exploitation argued that the age of consent for
sexual activity should be raised to 16, with three years being the permissible
age difference between consenting adolescents.(9)
PROPOSED
LEGISLATIVE AMENDMENTS
Private Members bill
C-255, proposed by Mr. Hanger, had first reading on 22 October 1997. Bill
C-255 would amend Criminal Code provisions dealing with prohibited
sexual acts committed with children, or in the presence of children, by
raising the age of those affected from 14 to 16.
Bill C-255 would also amend
subsections 150.1(1) and (2) to remove the defence of consent where the
complainant was under the age of 16, rather than 14 as is now the case.
As with the existing legislation, an exception to that rule would be retained
for an accused who was under 16 and less than two years older than the
complainant. However, it must be noted that the present legislation can
exempt 14 and 15 year olds from liability, presumably to avoid criminalizing
sexual activity between peers. In order to continue a similar exemption
for an accused who was over 16 but less than two years older than the
complainant, that age limit would have to be raised accordingly. That
would require amendment to section 150.1 (2)(a) to allow for the defence
of consent where an accused was over twelve "but under the age of
eighteen years."
CONCLUSION
Any change in the age of
consent in section 150.1 would also have to take into account the scheme
of sexual offences currently found in Part V of the Criminal Code,
as Bill C-255 appears to have done. However, as previously mentioned,
Parliament may prefer to retain an exemption from liability for those
engaging in consensual sex with persons under the legal age of consent,
where the difference in age is less than two years.
(1)
An Act to amend the Criminal Code and the Canada Evidence Act
(Sexual Offences), R.S.C. 1985, c. 19, (3rd Supp.)
(2)
S.C. 1980-81-82-83, c. 125.
(3)
R. v. M. (C.) (1995), 23 O. R. (3d) 629. Two judges
found that s. 159 of the Criminal Code infringed s. 15
of the Charter by discriminating on the basis of age, while the third
judge found discrimination on the basis of sexual orientation. All three
agreed that the law could not be saved as a "reasonable limit"
under s. 1 of the Charter.
(4)
Law Reform Commission of Canada, Working Paper 22, Criminal Law: Sexual
Offences, at p. 26.
(5)
R. v. Hess and Nguyen, [1990] 2 S.C.R. 906 at p. 920.
(6)
Working Paper 22, (1978), at p. 26.
(7)
At the time, legislative proposals to replace the Juvenile Delinquents
Act did not preserve the offence of contributing to juvenile delinquency.
(8)
An Act to amend the Criminal Code (child prostitution, child sex
tourism, criminal harassment and female genital mutilation), S.C. 1997,
c. 16.
(9)
Four-Year Review of the Child Sexual Abuse Provisions of the Criminal
Code and the Canada Evidence Act, June 1993, p. 5. Citing
insufficient evidence "to justify changing the age limits currently
established by the legislation," the Committee recommended that section
150.1 of the Criminal Code be retained in its present form.
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