Age of Consent in Sexual Offences

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General Principles

The lawfulness of sexual acts between persons will often depend on the presence of proper consent. The law deems persons of certain age unable to consent. What age applies will vary in some circumstances on the age of the adult participant.

Section 150.1 sets out the rules regarding the age of consent as it relates to sexual act and the criminalization of these acts. The statutory exemptions to criminal sexual acts found under s. 150.1 apply to certain situations that would otherwise make out one or more of the follow sex offences:

• Sexual Interference (Offence) (s. 151),
• Invitation to Sexual Touching (Offence) (s. 152),
• Sexual Exploitation (Offence) (s. 153(1)),
• Bestiality (Offence) (s. 160(3)),
• Indecent Act (Offence) (s. 173(2)),
• Sexual Assault (Offence) (s. 271),
• Sexual Assault with a Weapon (s. 272),
• Sexual Assault Causing Bodily Harm (s. 272), and
• Aggravated Sexual Assault (Offence) (s. 273).

The key rules are essentially as follows:

• Persons who are 12 or 13 can consent to sex with persons no more than two years their elder and not in a position of trust (s. 150.1(2))
• Persons who are 14 or 15 can consent to sex with persons no more than five years their elder and not in a position of trust. Or they can consent if married. (s. 150.1(2.1))
• Persons aged 16 and above can consent as an adult.

Consent no defence
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
Exception — complainant aged 12 or 13
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception — complainant aged 14 or 15
(2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception for transitional purposes
(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and

(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception for transitional purposes
(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.
Exemption for accused aged twelve or thirteen
(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
Mistake of age
(4) ...
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4; 2015, c. 29, s. 6.

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Consent Under the Age of 16
Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken.

All Reasonable Steps

What constitutes "all reasonable steps" is highly context specific and will vary on the circumstances.

The requirement under 150.1(4) requiring that "all reasonable steps" be taken to ascertain age suggests an "inquiry akin to a due diligence inquiry", however, there is no onus upon the accused.

150.1
...
Mistake of age
(4) It is not a defence to a charge under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [Bestiality in presence of or by child] or 173(2) [Exposure to person under 16], or section 271 [sexual assault], 272 [Sexual assault with a weapon, threats to a third party or causing bodily harm] or 273 [Aggravated sexual assault] that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Idem
(5) It is not a defence to a charge under section 153 [Sexual exploitation], 159 [Anal intercourse], 170 [Parent or guardian procuring sexual activity], 171 [Householder permitting prohibited sexual activity] or 172 [Corrupting children] or subsection 286.1(2) [Obtaining sexual services for consideration from person under 18 years], 286.2(2) [Material benefit from sexual services provided by person under 18 years] or 286.3(2) [Procuring — person under 18 years] that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Mistake of age
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant. R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4; 2015, c. 29, s. 6.

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Section 150.1(4) is only available where:

1. the accused had "an honest belief that the complainant was 16 years of age or older; and
2. he "took all reasonable steps to ascertain the age of the complainant".

An inquiry should be made into whether a reasonable person would have taken the steps taken by the accused to ascertain age.

Burden
The onus is on the Crown to prove beyond a reasonable doubt that the steps were insufficient. There is no burden on the accused.

Interpretation
"All reasonable steps" requires at a minimum, an "earnest inquiry or something that obviates the need for such an inquiry".

The requirement for all reasonable steps is more than a "casual" one.

Only information that is known to the accused in advance of the encounter at issue should be considered in the analysis.

It is recognized that people online regularly misrepresent themselves online, including age. This creates "all the more reason" to take additional steps to ascertain the real age of the person they are communicating with.

Asking Complainant's Age
It is not necessarily fatal to a defence for the accused to fail to ask the complainant of her age. But it is a "relevant to the inquiry as to whether or not all reasonable steps have been taken".

Indicia of Reasonable Steps

Certain factors to consider include:

1. the complainant’s physical appearance;
2. the complainant’s behaviour;
3. the ages and appearances of others in whose company the complainant is found;
4. the activities in which the complainant was engaged; and
5. the times, places and other circumstances in which the accused observed the complainant and the complainant’s conduct.