age of consent in canada
All sexual activity without consent, regardless of age, is a criminal offence.
The “age of consent” refers to the age at which a young person can legally consent to sexual activity. The belief is that all persons below a certain age are not mature enough to consent to sexual activity, even if a particular individual did consent in fact.
Canada’s criminal laws have always provided for an age of consent. Unsurprisingly given the long history and pervasiveness of homophobia, gay sex has always been subject to different rules than the laws governing straight sex. Remarkably, gay sex remains illegal today in circumstances where it would not be illegal for straight people.
When it comes to historical criminal charges for events that happened long ago, the further back in time you go, the worse the discrimination that existed.
From 1892 until 1988, the age of consent in Canada for opposite sex partners was 14. During most of that time, any form of sexual activity between males was criminal and punished with imprisonment, and even whipping, regardless of age. No one was old enough to consent to gay sex. It was always illegal.
In 1969 the law was changed. For the first time, sexual activity between men was legalized, as long as there were only two men involved, both were 21 or over and the sexual activity took place in private. Anal sex was allowed for straight people of any age, as long as they were married to each other. The age of consent for other kinds of straight sex remained 14.
The offences that Brent is charged with are alleged to have taken place around 1974 or 1975. The age of consent for straight sex was 14 at the time, and the age of consent for any kind of gay sex was 21. The changes that took place after that time do not affect these charges.
In 1983, the sexist and homophobic offence of indecent assault on a male was repealed. However, gross indecency remained on the books, meaning gay sex was still illegal unless you were 21. It was still OK for straight folks at 14. In 1985, the gross indecency law was finally repealed so gay sex except for anal intercourse was finally subject to the same rules that applied to straight sex – except for anal intercourse. Gay men could only have anal intercourse at age 18. That is still true today.
The general age of consent for heterosexual relationships was increased to 16 in 2008. Additional restrictions were introduced in 1988 that applied to gay sex and straight sex alike in special circumstances. For the first time, if a relationship of trust or authority existed between an adult and a younger person, the younger person now had to be 18 to validly consent.
Two new exceptions were created: persons aged 12 or older can consent if their partner is no more than 2 years older; and persons between 14 and 16 can consent if their partner is no more than 5 years older.
So, while a heterosexuals in Canada can lawfully engage in vaginal intercourse when they are as young as 12, anal intercourse between gay men is still a crime unless both men are 18. The age-old prejudice of our criminal law against gay men continues to this day.
Although courts in numerous provinces including Nova Scotia have ruled that it is a violation of the Charter of Rights to have a different age of consent for gay men having anal intercourse, the discriminatory age difference has never been changed by Parliament.