The Law and Consent

Sexual Violence: A Nova Scotia Resource Exploring Sexual Consent The Law and Consent

Introduction

Canadian Law defines consent as voluntary agreement to engage in a particular sexual activity.

Consent Law, Alcohol and Drugs

What does the law say about consent and alcohol or drugs? There cannot be consent where the victim/survivor is “incapable of consenting to the activity”. There is, however, no definition of how drunk or high someone needs to be, to be unable to consent. This would be decided by judges/juries if a sexual assault charge makes it to court. The law is clear that all of the parties must be conscious and awake during the sexual activity, even if they consented previously.

Youth and Consent: An overview

16 is the legal age of consent in Canada, however:
16 and 17-year-olds cannot consent to sexual activity with someone with whom they have a “relationship of trust, authority, or dependency” or where there is “exploitation”. (For example: a coach, doctor, or teacher).
14 or 15 can consent to sexual activity with someone who is less than 5 years older but it cannot be a “relationship of trust, authority, or dependency” or where there is “exploitation”.
12 or 13 can consent to sexual activity with someone who is less than 2 years older but it cannot be a “relationship of trust, authority, or dependency” or where there is “exploitation”.
Under 12: cannot legally consent under any circumstance.

Someone cannot legally consent to sexual intercourse with their parent, child, sibling, grandparent or grandchild. This is incest.

The age of consent is 18 when it involves:

Anal sex, which is only permitted between two people, and not in a public place. This higher age has been deemed unconstitutional by three provincial courts of appeal as it unevenly impacts men who have sex with men. It is, however, still law. As of March 2017, the federal Liberal government put forth a bill to amend the age of consent for anal sex to 16.
Engaging in the sex industry.

Child Sexual Abuse Materials (CSAM)

Child Sexual Abuse Materials (often referred to as child pornography) is any material that shows someone under 18 years of age engaging in sexual activity or "a young person’s sexual organ or anal region for a sexual purpose", or encourages others to sexually assault a child.

Canadian law states that "no one may make, distribute, transmit, make available, access, sell, advertise, export/import or possess" CSAM.

This includes when youth share photos or videos of themselves.

When it comes to consent, Canadian law is very clear that:

1. There is no such thing as implied consent.
2. You can only consent for yourself.
3. There can’t be consent if the person is unconscious or asleep. Including if they consented to the activity when they were conscious.
4. Someone cannot use their position of trust, power or authority to convince another to engage in sexual activity.
5. If you express a “lack of agreement” via your words or behaviours that is just as good as saying “NO”.
6. If someone indicates that they don’t want to continue, either verbally or with their actions there is no longer consent.
7. You cannot share intimate images of someone without their consent, regardless of age.
8. You cannot consent to “sexual intercourse” with your parent, child, sibling, grandparent or grandchild.

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