Canada's new laws-sexual consent

[Adelle]

Canada's new laws regarding sexual consent.

By Adelle Shea

Bill C-2 (Note 1), the Tackling Violent Crime Act, which consists of five bills dealing with violent crimes, dangerous offenders, and the age of sexual consent, was finally passed by the Canadian Senate and has received royal assent on 28 Feb 2008.

The new law strengthens the Criminal Code in the following five areas:

·Tougher mandatory jail time for serious gun crimes;

·New bail provisions which require that those accused of serious gun crimes show why they shouldn't be kept in jail while awaiting trial;

·Better protection for youth from adult sexual predators by increasing the age of protection for sexual activity from 14 years to 16 years;

·More effective sentencing and monitoring to prevent dangerous, high-risk offenders from offending again; and

·New ways to detect and investigate drug-impaired driving and stronger penalties for impaired driving.

Aside from the law on the issue, studies of Canadian youth have found that young persons do engage in sexual activity. The 2003 report of the Council of Ministers of Education, Canada, the Canadian Youth, Sexual Health and HIV/AIDS Study, (Note 2) found that the average age of first sexual intercourse for its sample (students in Grades 7, 9, and 11) was 14.1 years among boys and 14.5 years among girls. Furthermore, the reasons cited by youth for not having sexual intercourse are most commonly that they are “not ready” or “have not had the opportunity.” Negative family and peer opinions do not play major roles in the decision not to have sex. It is open to question, therefore, what, if any, impact a change in the age of consent in the Criminal Code will have upon the sexual activity of Canadian youth.

The change to the age of consent in Bill C-2 derives from Bill C-22 (Note 3), An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act, which was introduced and received first reading in the House of Commons on 22 June 2006 and was passed by the House on 4 May 2007. Bill C-22 passed second reading in the Senate on 20 June 2007 but died when the then Liberal government of Paul Martin fell.

The goal of Bill C-22, and of the corresponding clauses in Bill C-2, was to amend Part V-Criminal Code of Canada (Note 4) to raise the age, from 14 to 16 years, at which a person can consent to non-exploitative sexual activity. The existing age of consent of 18 years for exploitative sexual activity will be maintained. This applies to sexual activity involving prostitution, pornography, or where there is a relationship of trust, authority, dependency or any other situation that is otherwise exploitative of a “young person,” which is now defined as a person between the ages of 16 and 18.

Clause 54 is the key provision of Bill C-2 on the issue of age of consent as it has the effect of raising the age of consent from 14 years of age to 16. It does so by replacing the words “fourteen years” with the words “sixteen years” wherever they occur in the following provisions:

·subsection 150.1(4) (no defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed the complainant was 14 years of age or more at the time the offence is alleged to have been committed);

·sections 151 (sexual interference) and 152 (invitation to sexual touching);

·subsection 153(2) (definition of “young person” for purposes of sexual exploitation);

·subsection 160(3) (bestiality in presence of person under the age of 14 years (doubles jail term for 160(1) Bestiality);

·subsection 161(1) (order of prohibition in respect of a person who is under the age of 14 years);

·paragraphs 170(a) and ( (parent or guardian procuring sexual activity of a person under 14 years or between 14 and 18 years of age);

·paragraphs 171(a) and ( (householder permitting sexual activity (prohibited by this Act) of a person under 14 years or between 14 and 18 years of age);

·subsection 173(2) (exposing genital organs for a sexual purpose to a person under the age of 14 years (as an indecent act));

·paragraphs 273.3(1)(a) and ( (removal from Canada of a person ordinarily resident in Canada who is under the age of 14 years or between 14 and 18 years of age); and

·subsection 810.1(1) and paragraphs 810.1(3)(a) and ( (recognizances based on the fear of a sexual offence being committed against person under the age of 14 years).

·(Note: italics are my own and provided for the purpose of clarification.)

It is important to understand that The Criminal Code of Canada does not criminalize non-exploitative, consensual sexual activity with or between persons who are 16 years of age or older, unless it takes place in a relationship of trust or dependency, in which case sexual activity with young persons can constitute an offence, notwithstanding their consent. The law still allows consensual activity where the complainant is 12 years of age or more but under the age of 14 years, amending subsection 150.1(2) to simply state that the accused must be less than two years older than the complainant.

A new subsection, 150.1(2.1), sets out new rules where the complainant is 14 years of age or more but under the age of 16 years. In these circumstances the accused must be less than five years older than the complainant (the so-called “close in age” exception) or be married to the complainant. There is another new subsection, 150.1(2.2), that makes transitional provisions for an accused referred to in subsection 150.1(2.1) who is five or more years older than the complainant. In this case the defence of consent may be used successfully if 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 has had or is expecting to have a child as a result of the relationship.

The exception to this is anal intercourse, to which unmarried persons under the age of 18 cannot legally consent, although both the Ontario Court of Appeal (Note 5) and the Quebec Court of Appeal (Note 6) have struck down the relevant section of the Criminal Code. The usual caveats apply regarding a relationship of trust, authority, dependency or that is exploitative of the complainant.

New subsection 150.1(6) makes it clear that an accused cannot raise a mistaken belief in the age of the complainant as a defence under the new and amended subsections unless the accused took all reasonable steps to ascertain the age of the complainant. Existing subsections 150.1(4) and 150.1(5) already use this language for existing offences where the relevant age is either 14 or 18.

Section 172.1 of the Criminal Code creates the offence of using a computer system to lure children for the purpose of committing certain sexual offences. Henceforth, luring someone under the age of 14 by means of a computer system will be an offence only if it is done to facilitate the commission of an offence under section 281 (abduction of person under 14). New subsection 172.1(1)( will make 16 the relevant age for the offence of facilitating the commission of an offence under section 151 (sexual interference), section 152 (invitation to sexual touching), subsection 160(3) (bestiality in presence of young person), or subsection 173(2) (exposure to young person). Thus, the use of a computer system to facilitate the commission of these offences when the complainant is less than 16 is now made an offence.

In a nutshell, the age of protection (read age of consent) in Canada is now 12/14/16/18. That is:

·12-13 year olds can consent to sex with 14 and 15 year olds;

·14-15 year olds can consent to sex with up to 18 and 19 year olds (unless married);

·16 year olds can consent to all sexual activity excepting exploitive or anal sex (unless married);

·18 year olds can consent to all sexual activity (regardless of marital status).

I am assuming that 173(2) refers to an indecent act and not to legal sexual activity otherwise sex-in-the-dark will be making a big comeback.

The definition of pornography has not changed and, thankfully, does not include non-sexual or artistic nudity at any age. However, sexual nudity of a person under 18 is still child porn regardless of the age of consent and can be prosecuted under section 163.1 of the Criminal Code. Technically, this applies even if the victim is also the perpetrator as has been seen in some decisions in the US but not, to my knowledge, in Canada. However, a legitimate purpose related to the administration of justice or to science, medicine, education or art may still provide a legal defence.

The age of consent to sexual activity varies widely around the world and varies within countries, as it does in Canada, depending upon the region or circumstances (Note 7). Although the age of consent in the states of the United States ranges from 14 to 18, the most common age of consent seems to be either 16 or 18 and, like Canada, some states also have a close in age exemption. So if something (alcohol, cannabis, sex with a 16 year old) is legal in Canada but illegal in an American’s place of residence then he or she will be charged with an offence upon their return to the US if a complaint is made. This is not new, it has already happened more than once.

So, the question is, will this really change anything? At least the law recognizes that persons under the age of 18 do have a sexual identity and provide them with some latitude to explore that identity as well as protection. Protection from both the sexual abuser and the morally zealous.

Endnotes

1.Bill C-2: An Act to amend the Criminal Code and to Make Consequential Amendments to Other Acts, LS-565E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 29 October 2007.

2.Canadian Youth, Sexual Health and HIV/AIDS Study: Factors influencing knowledge, attitudes and behaviours, Toronto, 2003.

3.Bill C-22: An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act, LS-550E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, revised 2 August 2007.

4.Part V-Criminal Code of Canada

5.R. v. M.(C.) (1995), 98 C.C.C. (3d) 481 (Ont. C.A.). Two judges found that section 159 of the Criminal Code infringed section 15 of the Charter by discriminating on the basis of age, while a third judge found that there was discrimination on the basis of sexual orientation. All three agreed that the law could not be saved as a “reasonable limit” under section 1 of the Charter.

6.R. v. Roy (1998), 125 C.C.C. (3d) 442 (Que. C.A.). It was held that this section infringes section 15 of the Charter as it discriminates on the basis of age, sexual orientation and marital status and is therefore of no force and effect.

7.Table of worldwide ages of consent, AVERT website.

Edited March 5, 2008 by Adelle

[Melanie_]

I would like to have seen the double standard eliminated in this legislation. If it is legal for 16 year olds to have heterosexual sex, it should also be legal for 16 year olds to have homosexual sex. Different ages of consent makes no sense, and tells young gays that there is something wrong with their sexuality.

[Shakeyhands]

well there is something wrong with it according to the framers of this bill. They are mighty obsessed with it though aren't they.

[eyeball]

I wonder, did Charles McVety have any input into this sexual consent law? It wouldn't surprise me if he did.

[Arjun]

Boys usaly dont say that they are gay, thats why there might not be a problem with the age of consent. If someone said they were gay in my school they probably get there asses kicked.

[guyser]

Boys usaly dont say that they are gay, thats why there might not be a problem with the age of consent. If someone said they were gay in my school they probably get there asses kicked.

Go to school with a bunch of homophobes huh? Is most of the hair worn off their knuckles by Grade 10?

[Argus]

Go to school with a bunch of homophobes huh? Is most of the hair worn off their knuckles by Grade 10?

He simply seems to be more in touch with reality than you.

[Shakeyhands]

He simply seems to be more in touch with reality than you.

Should we not strive to change this reality?

[Adelle]

Boys usaly dont say that they are gay, thats why there might not be a problem with the age of consent. If someone said they were gay in my school they probably get there asses kicked.

This is a sad statement, but only too true, too often. At one of the schools I went to the students had no problems with gays, as long as they weren't in the school. Being different, in any way, wasn't exactly good for your health. Drug deals during lunch at the mall, no problem. A student run prostitiution ring, just business. Two guys doing it, just sick. (Two girls doing it was hot, go figure.) Canada in the 21st century has a ways to go.

[Argus]

Should we not strive to change this reality?

How? Kids have been subjected to a bombardment of pro-gay propaganda for at least a generation and it hasn't really helped a lot. A recent study on anti-bullying efforts - which have also been very strong over the last 10-20 years appears to show they have little effect either.

Kids can be cruel, and they pick on anyone different. That has always been the case. In all likelihood it always will be the case.

[socred]

I would like to have seen the double standard eliminated in this legislation. If it is legal for 16 year olds to have heterosexual sex, it should also be legal for 16 year olds to have homosexual sex. Different ages of consent makes no sense, and tells young gays that there is something wrong with their sexuality.

There is something wrong with their sexuality.

That doesn't mean that the government should punish them for their sexuality, but it certainly shouldn't condone it either.

[Leafless]

I would like to have seen the double standard eliminated in this legislation. If it is legal for 16 year olds to have heterosexual sex, it should also be legal for 16 year olds to have homosexual sex. Different ages of consent makes no sense, and tells young gays that there is something wrong with their sexuality.

Why don't you take up residence in Africa, where I am quite certain you would feel a lot more comfortable.

[margrace]

He simply seems to be more in touch with reality than you.

No he is following his homophobic friends, its all right to beat up on and even kill gays, what a nasty group we have here.

[margrace]

How? Kids have been subjected to a bombardment of pro-gay propaganda for at least a generation and it hasn't really helped a lot. A recent study on anti-bullying efforts - which have also been very strong over the last 10-20 years appears to show they have little effect either.

Kids can be cruel, and they pick on anyone different. That has always been the case. In all likelihood it always will be the case.

No kids learn from their cruel, homophobic elders the same one who teach them to be bullies.

[Melanie_]

Why don't you take up residence in Africa, where I am quite certain you would feel a lot more comfortable.

Hugs and kisses to you too, Leafy!

Edited March 8, 2008 by Melanie_

[Melanie_]

There is something wrong with their sexuality.

That doesn't mean that the government should punish them for their sexuality, but it certainly shouldn't condone it either.

People can't be discriminated on based on their sexual orientation; that's exactly what the government is doing by holding one standard for heterosexuals and another for homosexuals.

Sure there are homophobes out there - its up to the rest of us to disempower them. They have no business telling other people how to live their lives.

[RB]

As girls are the ones most likely benefiting, while applauded I'd even encourage the age of consent to age 18, for folks to be adult, make adult decisions pertaining to the bedroom

This approval of promiscuous behavior at such an early age and common law arrangements is the decay of morals and have led to much self esteem issues in women

Edited March 8, 2008 by RB

[socred]

People can't be discriminated on based on their sexual orientation; that's exactly what the government is doing by holding one standard for heterosexuals and another for homosexuals.

Sure there are homophobes out there - its up to the rest of us to disempower them. They have no business telling other people how to live their lives.

People are not considered adults until they are 18. Once they have reached the age of consent, I don't care what they do in their bedrooms.

I still have every right to consider homosexuality immoral, I don't believe I have a right to make it illegal (assuming the two consenting partners are of the age of consent).

[RB]

I still have every right to consider homosexuality immoral, I don't believe I have a right to make it illegal

Wait a minute now, if this is still democracy and the majority of folks believe something is immoral, don't we have some rights, and responsibilities to put checks and balances in place

[socred]

Wait a minute now, if this is still democracy and the majority of folks believe something is immoral, don't we have some rights, and responsibilities to put checks and balances in place

If you think that democracy is rule by the majority, then you are simply advocating a system of "mob rules" to which I want no part .

John Stuart Mill addressed the "tyranny of the majority" in his essay "On Liberty". Individual rights must be protected, and that is why we have constitutions which bind politicians.

The role of government should not be to enforce the majority's morality, but simply to protect our rights and freedoms. As soon as government deems itself the arbiter of morality, we are destined towards tyranny.

Edited March 8, 2008 by socred

[Melanie_]

People are not considered adults until they are 18. Once they have reached the age of consent, I don't care what they do in their bedrooms.

I still have every right to consider homosexuality immoral, I don't believe I have a right to make it illegal (assuming the two consenting partners are of the age of consent).

But is there a reason to have two different ages of consent - 16 for heterosexuals and 18 for homosexuals?

[Adelle]

But is there a reason to have two different ages of consent - 16 for heterosexuals and 18 for homosexuals?

But the ages of consent are the same whether you are straight or gay, hetero's can't have anal sex either until age 18 (unless they are married). Oddly, a 14 yo can have anal sex is they are married. Yes some men enjoy anal sex, so do some women. It makes for a completely different kind of orgasm. The question is, if a person can legally enjoy other sexual activities (vaginal, oral, fetish, etc) from the age of 12 on why is anal sex forbidden until age 18? Sex is sex. There should be no difference.

Having said that, the distinction is probably a left over from past homophobia that made itself apparent in various laws whose beginnings date back to the 1800's. In the 21st century, I think that it is certainly time to do away with those Victorian attitudes.

[socred]

But the ages of consent are the same whether you are straight or gay, hetero's can't have anal sex either until age 18 (unless they are married). Oddly, a 14 yo can have anal sex is they are married. Yes some men enjoy anal sex, so do some women. It makes for a completely different kind of orgasm. The question is, if a person can legally enjoy other sexual activities (vaginal, oral, fetish, etc) from the age of 12 on why is anal sex forbidden until age 18? Sex is sex. There should be no difference.

Having said that, the distinction is probably a left over from past homophobia that made itself apparent in various laws whose beginnings date back to the 1800's. In the 21st century, I think that it is certainly time to do away with those Victorian attitudes.

Sex between minors should be illegal (period).

After you reach the age of consent, it is not up to the government to make consenting sexual activities illegal. However; that does not make certain types of sex "moral". However; morality is an issue between oneself and God.

[RB]

I had this morality explained to me

Because I am in school and I had some moral dilemma, here is what my professor said to me

You are taking a test. You are left on your own, and have every opportunity to cheat, the answers for the test are at your disposal, plus other students answer.

People with high morals will still cheat at 5%. People will cheat to the % of their moral value. So you be the judge as to where your morals stand.

I can say sex belong in marriage. Any sex outside of marriage is immoral to the point of cheating at 5%. That is the standard I guess.

As I understand it, now the new breed of kids that we are bringing up don't have much standard. They can become engage alright but also they will use whatever means to get what they want, including violence. There is a survey out about youths, their thinking, and what they will do to get their way.

But, also the kids we are bringing up now will "whack" you for the answers of the test I don't wish to be abuse.

I recommend age 18 for sex - age appropriate for adult decision, take responsibilities for their actions and consequences

Edited March 11, 2008 by RB

[Drea]

Why is sex outside of marriage "immoral"?

While it may be immoral for you (you have some invisible entity judging your every thought) it is not immoral for me.

So it is not your place to tell me what is and isn't immoral.

You follow your rules, I will follow mine. As long as no one is getting hurt there should not be a problem.

One cannot make sex illegal between peers. How will you prosecute them? Chasitity belts for both parties until they turn 18?

Can you religious folks do me a favour?

This is a serious question, my hubby asked me to ask you.

Please define "god". What is "god" literally, what is it? Vapour? Air? A bearded man? What exactly?