The New Age of Consent in Canada
A Review of Recent Changes to the Law of Sexual Consent in Canada
The article reviews recent changes to the law of sexual consent in Canada including the arguments for and against raising the legal age of consent.
On February 27th, 2008 the Canadian Senate passed the ruling Conservative’s omnibus anti-crime bill which included tougher mandatory sentences for gun related offences, strengthened provisions against drug impaired driving, and relaxed the requirements that need to be met before a serious repeat offender can be declared a dangerous offender and locked up indefinitely. The bill (Bill C-2) also raised the age of consent in Canada from 14 to 16 years of age.
Since the first Criminal Code came into effect in Canada in 1892, the age of consent in Canada has been 14 years of age. Over the last century other provisions were put in place to modify the circumstances in which the age of consent would be interpreted. Most recently the Criminal Code included provisions criminalizing sexual activity between an adult and a person over 14 but under 18 where the adult held a position of trust or authority over the child. Furthermore, the Code also provided that consensual sexual activity between a child over 12 but under 14 and a child under 16 and less than 2 years older than the complainant may not be an offence. The rational behind the former example is obviously the protection of children between the ages of 14 and 18 from sexual exploitation by the adults that they rely on while the rationale for the latter example is the limiting of criminality for sexual activity within peer groups. These two provisions serve to bookend the debate on raising the age of consent.
The argument for raising the age of consent states that in the modern world with the advent of internet predators, international human trafficking, and the ubiquitous availability of hard drugs, tougher laws are needed across the board to protect young people from exploitation by adults. This would include limiting sexual activity between adults and minors beyond the current, out-dated standards. By raising the age of consent and its accompanying provisions to 16 years of age, the police and the courts will be able to clamp down on sexual predators and keep children safe. Adherents of this position point to the statistics of those working in the sex trade and note the disproportionate number of those between the ages of 14 and 16.
The argument against raising the age of consent is partly political and partly pragmatic. At the political end, those with a more liberal bent suggest that changing the age of consent is a “hot button” issue being exploited by the Conservative government and forced through the Senate for easy political points in the public eye. The suggestion is that the new law will criminalize sexually active youth rather than provide them with any meaningful protection from those who already operate outside of the law. The pragmatic argument states that limiting the sexual behaviour of teenagers with the blunt force of the criminal law will not stop teenagers from expressing themselves sexually and will limit the resources available to properly educate them on what has become illegal activity.
Obviously the law has to change over time to reflect new conditions. Sexually inappropriate behaviour between adults and children has undoubtedly always existed. The issue is how we define what is sexual, what is inappropriate, and who are children. A century ago when children worked hard labour long hours with little care or supervision, the difference between a 12, 14 , or 16 year old was likely not considered so great. The onus was on parents to protect their kids and those that fell by the wayside were not generally regarded as warranting state intervention on their behalf.
Times have changed. The issue of the age of consent has been on the public radar for at least the last fifteen years and none of the opposition parties took any kind of stand against the government’s plans to raise the age to 16. The issue was a non-starter because both the public and the politicians are of the sentiment that modern conditions are such that sexual activity should not be a matter of consent for anyone under 16. How well this use of the criminal law for behavioural modification will work remains to be seen.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
