The age of consent to sexual activity is 16 across Canada, although there are a number of exceptions that should be considered carefully before becoming sexually involved with another person.

Sexual activity means sex, oral sex, and sexual touching. Anal sex is also sexual activity, but is an important exception to be aware of. Under the Criminal Code of Canada youth under 18 cannot engage in anal sexual activity; however, this law has been challenged in the courts and has been found unconstitutional in Alberta. Unconstitutional means that the law goes against the Constitution of Canada, which is the supreme law of Canada. Because this law is contrary to the Constitution it is not valid, so although the law will remain written in the Criminal Code of Canada, the law itself will not be enforced in practice by police authorities or the courts.

If you are 16 but under 18 you cannot consent to sexual activity with a person who is in a position of trust or authority towards you. You cannot consent if you are dependent on that person, or if the relationship is “exploitive” of you. This means that the person is taking advantage of you. If a person is in a position of power in relation to you it is illegal for them engage in sexual activity with you until you turn 18, not 16.

Examples of positions of power might include if they supervise you at work or if they tutor you for school. If you are physically or mentally handicapped, the person you wish to engage in sexual activity with may be in a position of trust or authority towards you even if you are just friends. Consent is really about the amount of control or influence that exists in the relationship and depends on the particular circumstances between you and the other person.

You can consent to sexual activity with someone who is less than 5 years older than you. For example, if you are 15 you can consent to sexual activity with a 19 year old, but not a 20 year old, because they would not be less than 5 years older than you.

The rule above that says you cannot consent to sexual activity with a person who is in a position of trust or authority also applies to 14 and 15 year olds. If you are dependent on the person you are considering engaging in sexual activity with, or the relationship is exploitative, you cannot consent to sexual activity with them.

You can consent to sexual activity with someone who is less than 2 years older than you. For example, if you are 13 years old you could consent to sexual activity with a 14 year old, but not a 15 year old, because they would not be less than 2 years older than you. The rule above regarding relationships of trust or authority also applies to those who would otherwise legally be able to engage in sexual activity with a 12 or 13 year old.

If you are 12 or 13 years old you cannot get in trouble for sexual activity unless you are in a position of trust or authority towards the person you engage in sexual activity with. If the person you wish to engage in sexual activity with is dependent on you or the relationship between you is exploitative, you can then be held criminally responsible for sexual offences.

It is your responsibility to make sure the person you are engaging in sexual activity with is old enough to consent based on the circumstances and your relationship with them.

The law requires you to take “all reasonable steps” to determine the age of the person. For example, if you go to school with the person and trust them, it may be good enough to just ask them how old they are or when their birthday is. If you do not know the person very well and you suspect they may not be able to legally consent to sexual activity, taking “all reasonable steps” might require looking at their learner’s permit or another form of identification.

• Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
• Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1
• Criminal Code, R.S.C. 1985, c. C-46, ss. 153.1
• R v Roth, 2002 ABQB 145
• Reviewed 07/16