The age of consent for sexual activity in Canada is set out in the Criminal Code. As a general rule, a person cannor consent to sexual activity until they are 16 years old. As a result, if you have sexual relations with someone who is not yet 16 years old it is no defence that he or she consented to the activity. However, there are exceptions.
If the complainant is 12 years old or more but under the age of 14 it is a defence that he or she consented to the activity that forms the subject-matter of the charge in cases where you are less than two years older than the complainant. For instance, if the complainant is 13 and you are only 14 years old you can argue that he or she consented to the sexual activity. If, however, you are 17 years old then you cannot.
If the complainant is 14 years old or more but under the age of 16 it is a defence that he or she consented to the activity that forms the subject-matter of the charge in cases where you are less than five years older than the complainant. This would cover most sexual relationships between high school students.
Furthermore, if the complainant is 14 years old or more but under the age of 16 and you are more than five years older at the time of the sexual activity, consent can be a defence in circumstances where you are a common law partner of the complainant or have been living with the complainant in a conjugal relationship for a period of less than one year and have, or are expecting to have, a child as a result of the relationship. In order for the defence to be available you must also not be in a position of trust or authority towards the complainant, are not a person with whom the complainant is in a relationship of dependency and are not in a relationship with the complainant that is exploitative.
Even in cases where the defence of consent is not available, an accused can still raise a defence that he or she believed the complainant was of legal age and took all reasonable steps to ascertain the age of the complainant.
