Age of consent for sexual activity in Canada

Abstract

To help protect youth from sexual predators and to fight child sexual exploitation, which has become increasingly prominent in the age of the Internet, the Government of Canada has passed new legislation increasing the age of consent for sexual activity. The new legislation came into effect on May 1, 2008, and aligns Canada’s age of consent with that of many other countries. From 1890 until recently, the age at which a youth could consent to nonexploitative sexual activity was 14 years (1). With the recent change to the criminal code of Canada, the age of consent for nonexploitative sexual activity is now 16 years. Nonexploitative activity is defined as sexual activity that does not involve prostitution or pornography, and where there is no relationship of trust, authority or dependency between the persons involved (1). A coach, spiritual leader, teacher, school principal, guidance counsellor or family member are all examples of persons in a position of trust or authority with youth. For exploitative sexual activity (prostitution or pornography, or where there is a relationship of trust, authority or dependency), the age of consent is 18 years. The spirit of the new legislation is not to regulate consensual teenage sexual activity. To this effect, there are a few notable exceptions to the law: Youth 12 or 13 years of age can consent to nonexploitative sexual activity with peers when the age difference is no more than two years. For example, a 12-year-old child is deemed capable of consenting to sexual activity with a 14-year-old, but not a 15-year-old. Youth 14 or 15 years of age can consent to nonexploitative sexual activity when the age difference is no more than five years. For example, a 15-year-old can consent to having sexual intercourse with a 20-year-old, but not with a 21-year-old. Children younger than 12 years of age can never consent to sexual activity with anyone, of any age, regardless of whether they say they do. As before, all nonconsensual sexual activity, regardless of age, constitutes a sexual assault. Exploitative sexual activity, sexual assault or sexual activity with anyone younger than 12 years of age or between 12 and 16 years of age, except as above, should raise child protection concerns. All Canadian provinces and territories have child protection legislation with mandatory reporting laws for suspected cases of child maltreatment. Because child protection is a provincial matter, each province has slightly different legislations with notable exceptions in the ages at which youth are no longer considered ‘children’. A ‘child’ is usually defined as anyone younger than 16 years of age to 19 years of age, depending on the province (2). It is important for physicians counselling sexually active youth to enquire about consent and the age of their partner. As always, as a means to safeguard the trust relationship that exists between physician and patient, it is advisable for physicians to discuss the limits of confidentiality with all their young patients before entering into such conversations. As the new legislation gets implemented, child welfare agency responses to such concerns may differ from province to province. Any physician experiencing doubt about whether a situation constitutes maltreatment or whether it is reportable to child welfare authorities, should err on the side of caution and contact their local child welfare agency to discuss the matter further.