CONFUSION OVER AGE OF CONSENT

Reality (publication of Real Women of Canada)

January/February 2006

It is not surprising that there is confusion over the age of consent in Canada, as it varies in different areas of the law. That is, the age of consent for sexual intercourse is set out in the Criminal Code, but it is different from the age of consent required for entering into marriage which is set out in the individual marriage statutes for each province.

Age of Consent for Heterosexual Intercourse in the Criminal Code

The Criminal Code provides that the age of consent for sexual intercourse is 14 years of age – one of the lowest in the western world. That is, the Criminal Code provides that it is a criminal offence to have sexual intercourse with anyone under 14 years of age on the basis that adolescents under that age are not capable of giving a valid consent to the sexual act.

The age of consent for sexual intercourse at 14 years of age was first set out in the 1892 Canadian Criminal Code. This provision was based on the British law at that time, except that the age of consent in Britain was a year younger, at 13 years of age.

Setting the age of consent for sexual intercourse at 14 years of age may have been acceptable 114 years ago, when life expectancy was much shorter, but it is no longer acceptable today because present-day 14 year old adolescents, who are still in school, today do not have the maturity to make responsible decisions in regard to their sexual activity with adults. Sex between young persons and adults can lead to long-range problems that will affect the adolescents for the rest of their lives. Such activity can and does lead to sexually transmitted diseases (STDS and AIDS), unexpected pregnancies, the lowering of self-esteem and the curtailment of education, among other problems.

The provincial attorneys-general have tried to convince the federal Liberal government over the past several years to raise the age of consent. At the federal-provincial meetings of Attorneys General in 1998, 1999 and 2003, the proposal to raise the age of consent was put to the Liberals to act. To no avail. For example, when the Liberal government brought in child protection legislation in 2005, the age of consent was not included in the bill. The Conservative Party, on the other hand, has tried to raise the age of consent to at least 16 years of age, on at least two occasions by way of private members bills. In April 2002, it put forward such legislation and again in September, 2005, but the Liberals each time refused to go along with the proposal and the bills failed to pass.

According to a Pollara poll, released in May, 2002, 80% of Canadians support increasing the age of consent from 14 years of age to at least 16 years of age.

Homosexual (Anal) Sex

Up until 1967, all homosexual acts, which were referred to at that time in the Criminal Code as, “buggery”, were prohibited by law. In 1967, then Justice Minister Pierre Trudeau brought in extensive amendments to the Criminal Code. Included in these amendments was the provision that acts of buggery (anal sex) were permissible between consenting individuals 21 years of age or older.

In 1986-87, the Criminal Code was again under review, and at a meeting of the House of Commons Committee on February 17, 1987, homosexual, NDP MP Svend Robinson, made a motion in Committee that the word “buggery” in the Criminal Code be changed to the expression “anal intercourse”. This was agreed to by the Committee and the Criminal Code was subsequently amended to refer to homosexual acts henceforth, as “anal intercourse” rather than acts of buggery.

Mr. Robinson then moved at that same Committee meeting, that the age of consent for buggery (anal intercourse) be lowered to 14 years of age from the then 21 years of age, on equality grounds in the Charter of Rights. That is, he argued that since the age of consent for heterosexual sex was set at 14 years of age, then the age of consent for homosexual sex should also be set at 14 years of age. This motion was defeated, although the Committee subsequently did decide to reduce the age of consent for homosexual acts from 21 years of age to 18 years of age and this latter amendment passed into law in June, 1987.

The reason the Committee decided not to reduce the age of consent to 14 years of age, as recommended by Mr. Robinson, was due to the differences in the sexual acts between heterosexuals and homosexuals as explained by the then Minister of Justice, Raymond Hnatyshyn, who testified before the Committee in this regard, as follows: (17 – 2 – 1987: 1:30)

You will recall, Mr. Chairman, that both the Badgley and Fraser reports recommended the reduction to the age of 18, which is the basis of the present legislation, from 21. They did not recommend the provisions that Mr. Robinson and the NDP are now putting forward.

Mr. Robinson, the fact is that this is a reduction from 21 to 18 which is the age of consent.

There are, I think, a couple of factors that we should take into an account to make our judgment with respect to taking any further steps. Medical evidence does indicate different kinds of psychological or physical harm may attach to different types of intercourse for young persons. Medical experts are not certain at what age sexual preference is established, and many argue that the age is fixed only in the later teen years. Also the question here is the heightened danger of contracting Acquired Immune Deficiency Syndrome or other sexually transmitted disease from penetration.

So for a variety of reasons, quite unrelated to any question of discrimination at all, I think there are a number of bases upon which we have proposed that this provision should satisfy the recommendations of the two commissions which spent a lot of time considering appropriateness of changes in the law with respect to the whole area of child sexual relations. So we have brought forward legislation which is based on the recommendations of Badgley and Fraser. This is the reason why, Mr. Robinson.

Court Steps in to Lower Age of Consent for Homosexual Acts

What the legislators refused to do in reducing the age of consent for anal sex, the courts did for them. Two female judges, in two different courts in 1995, arbitrarily decided that the age of consent for anal intercourse should be reduced from 18 years of age to 14 years of age on the basis of equality rights. That is, on the grounds that setting a higher age of consent for anal intercourse from that of other sexual intercourse was discriminatory under the equality provision of the Charter of Rights, Madame Justice Barbara Reed, in the Federal Court of Canada in February, 1995 (see Reality, March/April 1995, “Reducing the Age of Consent for Homosexual acts”, p. 14), and Madame Justice Rosalie Abella in the Ontario Court of Appeal in May, 1995 (see Reality, July/August, 1995, “Court Lowers Age for Homosexual Sex”, p. 7) struck down the age of consent for anal intercourse from the age of 18 years to 14 years. The judges claimed it was discriminatory to provide age of consent for one type (heterosexual) of sexual intercourse at 14 years but another higher age of consent for anal intercourse. In her judgment, Madame Justice Rosalie Abella specifically stated that anal sex was “a basic form of sexual expression for gay men” and stated that the difference in the age of consent for anal sex “…perpetuates the gap for a historically disadvantaged group – gay men”.

In reaching their conclusions, both these judges ignored the medical facts surrounding anal intercourse and instead endorsed the politically correct position, regardless of its medical implications. Neither of these decisions was appealed by Justice Minister Allan Rock. Consequently, adult homosexuals now have legal access to 14 year old male youths for anal intercourse. This is the reason why the Liberals refused to raise the age of consent. That is, homosexuals want access to 14 year old youths and successfully pressured the Liberal government against raising the age of consent for homosexual acts (anal intercourse).

Age of Consent to Marry

Under the 1867 Constitution Act, the Federal Government has jurisdiction to determine who has the capacity to marry, but the provinces have jurisdiction over all marriage procedures. These procedures include the determination of at what age (age of consent) an individual may enter into marriage. The age of consent for marriage differs somewhat across the country, as follows:

Province Age of Consent Province Age of Consent
British Columbia 19 Quebec 18
Alberta 18 New Brunswick 18
Saskatchewan 18 P.E.I. 18
Manitoba 18 Nova Scotia 19
Ontario 18 Newfoundland and Labrador 19

Those under the age of consent, who are seeking to marry, must, according to the respective provincial legislation, obtain consent to marry from their parents before a license to marry can be issued. If parents are not available, the provincial statutes usually make provision for consent to be obtained from other sources such as a judge etc.