6. Love, Sex and Marriage
As we have seen, except when a fairly serious problem arises, the law is generally reluctant to interfere in personal relationships. So you might think that it would steer clear of sex—which is, after all, the most intimate of personal relationships. Yet sex is a subject about which most societies have seen fit to make rules. In Canada, most of these rules are found in the Criminal Code, and there are strict penalties for breaking them. In criminalizing certain activities that relate to sex, the law aims to protect people from being forced into intimate behaviour they do not want, from acts they may not be physically and/or emotionally ready for, and from other actions that could harm them in some way or that involve exploitation. The law also lays down rules about the circumstances under which two people can marry, as well as about the rights and responsibilities that marriage brings with it.
Although the law is not supposed to pass judgment on private morality, it does seek to protect what the Criminal Code calls “public morals.” In other words, it tries to outlaw activities that, in the opinion of lawmakers, could tend to corrupt moral standards, including those that relate to sexual behaviour. But this is an area in which the rules can get controversial. Quite apart from the fact that social attitudes toward sex shift over time, private morality differs a lot from one person to another. So how do we decide what moral standards the “public” (that is, everyone who lives in a country) should have? This is a very difficult question, and the best we can do here is tell you what the law regards as unacceptable.
No Means No: The Need for Consent
Do you have a right to have sex? Only under some conditions. In order for sexual contact to be legal, both people involved must consent to it. This means that your partner must make it clear that he or she wants to engage in sexual activity with you; otherwise, you have no right to continue. It also means that you must always respect your partner’s wishes and never, under any circumstances, force anything on your partner that he or she does not want. Forcing anyone of any age to engage in sexual activity against their will is a crime, called sexual assault. Under section 271 of the Criminal Code, the penalty for sexual assault can be as high as ten years in prison—up to fourteen years if the victim is under 16.
Sexual assault includes not only rape and other forced intercourse but also unwanted kissing, petting, or any touching that could be seen as sexual. It doesn’t matter if the person you are with began getting intimate with you willingly. If he or she says to stop at any point, you must do so. Furthermore, according to section 153.1(3) of the Criminal Code, in order to be able to give legal consent (and to continue to do so), your partner must be mentally competent—that is, he or she must be able to make decisions. Someone who is drugged or extremely drunk is in no position to say yes or no. It is an especially serious offence to deliberately drug someone or otherwise render someone unconscious or incapable of resistance in order to have sex with the person. Under section 246 of the Criminal Code, committing such an offence could result in life imprisonment.
It also doesn’t matter whether you already know someone and the two of you perhaps share a mutual attraction. If you force this person to have sex with you, this is rape. More specifically, it’s what is often called “date rape” (or sometimes “acquaintance rape”). Date rape may involve giving a drug to the victim or getting the person very drunk and then having sex with him or her—which, as we just mentioned, is a very serious crime. At the same time, as section 33.1 of the Criminal Code makes clear, being intoxicated yourself is not a defence against criminal charges. This is underscored in section 153.1(5), according to which you can’t argue that you were drunk or high, and so you thought your partner had consented. As the law sees it, if someone chose to become intoxicated, that person is still held responsible for their actions.
The Age of Consent
The law puts strict limits on the age you must be before someone may engage in any form of sexual activity with you—not merely sexual intercourse but also any other behaviour of a sexual nature (including hugging or kissing that is clearly more than just a friendly show of affection). Before you reach the age of 12, the law considers that you are neither physically nor emotionally mature enough for sexual activity. Until that age, you cannot consent to sexual contact of any sort, and someone who forces it on you is guilty of child abuse.1 Otherwise, in Canada, the “age of consent” for sexual activity is set at 16. This means that, until you reach the age of 16, you are not legally able to consent to sexual activity, and a person who initiates or attempts to initiate sexual activity with you is guilty of a crime, according to section 151 of the Criminal Code. (These rules do not apply if the two people are married—although, as we will see below, you cannot marry until you are at least 16.)
The law recognizes, however, that young people sometimes have sexual relationships with each other, and so it makes some exceptions when young partners are close in age. Thus, according to sections 150.1(2) and (2.1), a person who is 12 or 13 may consent to sexual activity with someone who is less than two years older, and a person who is 14 or 15 may consent when the other person is less than five years older—provided, in both cases, that the older person is not attempting to exploit the younger one or take advantage of a relationship of authority or dependence.
Although the age of sexual consent is normally 16, in some situations, which the Criminal Code considers to be “sexual exploitation,” the age is 18. Until you reach the age of 18, you can’t legally consent to sexual activity with someone on whom you are dependent or who stands in a position of authority or trust toward you. This can mean a teacher, coach, camp counsellor, employer, family member, foster parent, doctor, or similar person. You must also be 18 to consent if the sexual act is for the purpose of prostitution or pornography, if you are paid to engage in it, or if it involves some other kind of exploitative relationship. In addition, it is illegal to use the Internet to communicate with a young person in order to commit a sexual offence against him or her.
These rules are meant for the protection of young people. But there is one strange exception to the standard age of consent. In the case of anal sex, the age of consent is set at 18. It is actually a crime to have anal sex unless both participants are 18 or older (or are husband and wife) and do so in private (Criminal Code, s. 159). This discriminatory rule has no protective value for youth and is apparently an out-dated morality law, one that has been found unconstitutional by the highest courts in Ontario (1995), Québec (1998), British Columbia (2003), and Nova Scotia (2006).2 Two bills are currently before the House of Commons (C-32 and C-39) that would repeal section 159.
“Sexting” and Online Harassment
Sexting, or using the Internet to share images of a person that are meant to cause sexual arousal or excitement, has become a popular activity in recent years. Sharing a picture of someone who is naked or semi-naked and/or is engaged in a sexual action is legal as long as both the person in the picture and whoever is taking or sharing the picture are 18 or older and as long as everyone involved in creating and sharing the picture consents. If the person in the picture is under 18, however, sexting is legally considered child pornography, and taking and distributing the picture is a criminal offence.
With respect to the creation and distribution of child pornography, however, the Supreme Court has recognized an exception if two young people take pictures of themselves in an explicit sexual act together. For this to be legal, however, they must both consent to creating the picture, and they must both be in the picture and create it together. In addition, the picture must not show any illegal sexual activity, and they must keep it to themselves.3 If they send the image along to anyone else, or if the image shows only one of them, then the sexting is considered child pornography, which is a serious crime. Even if you are under 18, it is not illegal to create a provocative image of yourself alone (a selfie), but, again, you must keep it to yourself—that is, share it with no one, not even your partner.
As numerous young people have discovered, one problem with sexting is that, while you may think that someone with whom you’ve shared a sexually provocative picture will keep it private, that person may still choose to share it with others. If, without your knowledge or permission, someone shares private pictures that he or she took of you, this is considered a form of online harassment (or cyberbullying), and the same is true if someone spreads information about your sexual behaviour online. Although the person who shares the picture or the information may not realize it, he or she may be committing a crime—for example, under section 162 of the Criminal Code (which deals with voyeurism), or section 163.1 (which concerns child pornography), or section 264 (which defines criminal harassment). So, quite apart from the situation you’re in, the other person could be in serious trouble.
If a picture of you ends up on the Internet or otherwise shared, or if someone writes lewd things about you or attacks you online, you can ask the website to take down the picture or remove the post. If the picture or post is especially offensive, it might be best to have a lawyer threaten the poster or the website with a court order or even to press criminal charges, if there are grounds for doing so. In particular, if someone ever threatens to harm you in some way if you don’t allow that person to have sex with you or share sexually provocative images of you, you should get help. As we mentioned in chapter 4, threats—of whatever sort—that reasonably cause someone to fear for his or her safety (or the safety of someone he or she knows) are a crime under section 264 of the Criminal Code.
According to Canada’s 1867 Constitution Act, laws governing marriage are a federal responsibility, but provinces and territories can pass laws regarding the “solemnization” of marriage, including the age at which someone can get a marriage licence. In 2001, when the Parliament amended the Civil Marriage Act—which legalized same-sex marriage throughout the country—it set the minimum age for marriage at 16 (s. 2.2). So, no matter where you live, it’s impossible to get married before you turn 16.4 In practical terms, however, until you are a legal adult (18 or 19 years of age, depending on the province), you generally cannot get a marriage licence without the written permission of your parents or guardians.
For example, according to section 5 of Ontario’s Marriage Act, if you are under the age of 18 (that is, if you are 16 or 17), you will need the written consent of both your parents in order to marry, unless you have already been married and were widowed or divorced. If your parents are living apart or if one (or both) of them is dead or is otherwise incapable of granting legal consent, permission may be given by the parent who has custody or by a lawful guardian, as the case may be. If the person who has the power to give consent is unavailable or arbitrarily refuses to give consent, then, under section 6(1), you can apply to a judge to dispense with consent. If all else fails, section 10 allows you to ask the government minister responsible for the administration of the Marriage Act to issue a marriage licence.
In Québec, the law is a little different. There, if you wish to get married before you turn 18, you will need the consent of a court, according to article 373 of the Civil Code. In this case, you can apply to the court yourself for this authorization, and the judge will then summon your parents or guardians to give their opinion—but their consent as such is not necessary.
If you applied to a court to dispense with parental consent (or if, in Québec, a judge were to override your parents’ objections), you could be pretty sure that the judge would not do so lightly. He or she would want to be convinced that you are mature enough to be ready for marriage, that you understand the responsibilities that marriage entails, and that you are not making a hasty or frivolous decision but have thought through all the consequences. When two young people want to get married because the girl is pregnant, the fact of a pregnancy alone will probably not persuade a judge to give consent, if he or she feels that one or both of them is not yet mature enough to take this step.
If you do end up marrying under the age of majority, you gain all the rights and responsibilities of any other married person. Today, husbands and wives are equal in the eyes of the law: they owe each other mutual respect, the willingness to engage in a sexual relationship, and faithfulness. (These duties cannot be enforced, but not fulfilling them can be cause for divorce.) They must respect each other’s legal rights and are generally expected to support each other in times of need and allow each other to live in the family home, even if only one of them owns it. If you marry while you are still a minor, you also acquire many of the rights of a legal adult. Your parents no longer have authority over you (but, depending on the province, you may also lose the right to their support), and you may now perform many legal actions that a minor normally cannot. This change in status is permanent: it persists even if you divorce or are widowed before you reach the age of majority.
In Canada today, it’s up to each person to decide when to get married and to whom. In other words, marriage is a matter of individual choice. This seems natural to most of us because we think of getting married as something people do when they’ve fallen in love, and only we can decide whether we love someone. In many cultures, though, parents are the ones who choose their children’s marriage partner, sometimes with the help of other adult family members. This is called arranged marriage, and it reflects a different way of thinking about marriage, one that has less to do with notions of love and individual freedom and more to do with familial duty. In fact, for a long time, this system was quite common among the aristocracy in Europe and Britain—and traces of parental permission survive in our old custom that a man must ask a woman’s father for her hand in marriage.
In Canada, it isn’t illegal for parents to arrange a marriage, as long as the two people getting married are happy with the arrangement and freely agree to it. What is illegal, however, is forced marriage, in which one or both young persons are pressured into marrying or even compelled by threats to do so. In Canada, forcing someone to get married is a federal crime. According to section 293.1 of the Criminal Code, “Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” In this context, people who “aid” a marriage include parents or other family members who attempt to force a marriage. In addition, some of the methods that could be used in such an attempt—such as beating the person, unlawfully confining the person, or threatening him or her with injury or death—are illegal in themselves.
Of course, many parents hint around or even openly suggest that it’s time for one of their children to get married. For example, some parents feel that living together without getting married is morally wrong, and so they may try to convince the couple to get married. Although, for the most part, this sort of thing doesn’t happen before a young person is already a legal adult, sometimes—especially if the girl is pregnant—parents may put serious pressure on young people to get married, even if one or both of them is still a minor. Any young person who feels that he or she is being coerced or compelled to marry should regard this as a high-risk situation and seek help. Because the law considers it essential that both partners freely agree to a marriage, if someone is forced into marrying, the person can later ask a court to annul the marriage (that is, to declare it invalid). Assuming that the person asking for an annulment can provide convincing evidence that he or she got married as the result of threats or undue pressure, the annulment should be granted. If for some reason it isn’t, the person can ask the court for a divorce.
There can, at times, be a delicate line between an arranged marriage and a forced marriage. If your parents immigrated to Canada from a country in which arranged marriages are the custom, they may wish to choose a marriage partner for you from their home country and may even want to send you abroad for the purpose of getting married. Provided that you are a legal adult and are perfectly content with the plan, there is nothing wrong with consenting to this arrangement. If you are underage, however, the situation is a little different.
According to section 273.3 of the Criminal Code, if you are under 18 and are “ordinarily resident in Canada” (that is, if this is where you normally live), it is a crime for anyone to take you out of the country with the intention of committing certain crimes, many of which relate to sexual activity. So, for instance, you cannot be taken to another country and forced into prostitution. Under this same section—specifically, paragraph (1)(d)—it is also illegal for your parents to send you abroad for a forced marriage (which, as we mentioned above, is prohibited under s. 293.1) or for marriage at all, if you are under 16 (prohibited under s. 293.2). If you are still a minor and you suspect that your family may be planning to take you to another country in order to force you to get married, you should get in touch with the police or your local Children’s Aid Society or other child protection agency. If need be, they could take you into protective custody (something we’ll talk about in the next chapter). In an emergency situation, you could take the radical step of destroying your passport, which would at least delay an attempt to take you out of Canada.
In some such cases, the plan might be to have you return to Canada at some point after you’re married, so that your spouse can later move here as well. But it might also be that your parents intend to have you live in the other country (although, if you’re already a Canadian citizen, they cannot legally force you to leave the country permanently).5 If, in the end, you do end up in another country and are a Canadian citizen or permanent resident, you should contact the Canadian embassy or consulate there and explain your situation. Give them your full name, along with information about your citizenship and where you have lived in Canada, and show them any Canadian identification you may have with you (SIN card, health card, passport, citizenship card, driver’s licence). They may be able to help you.
Birth Control and Abortion
Bringing a child into the world is a huge responsibility. So it is only sensible that, when having sex, a person of any age who is not fully prepared to raise a child should take steps to avoid an unwanted pregnancy. A young person’s legal right to have access to birth control depends on what kind of contraceptives he or she wants to use:
- Condoms can be bought at any age, and some sexual health clinics or HIV centres distribute them for free. Many high schools also sell them from dispensers in the washrooms, though in this case there’s no guarantee that the condom will be fresh enough for reliable use.
- The birth control pill must be prescribed to a woman by a doctor. Usually, there should be no problem once you’re 16; under that age, the doctor may still prescribe the pill if he or she thinks you’re mature enough. (The fact that you’re trying to prevent an unwanted pregnancy will, we would hope, show that you are indeed mature enough.) Before going to any doctor or clinic to get a prescription for the pill, make sure they are willing to keep it secret from your parents if you don’t want them to know about it.
- Emergency contraception (the “morning-after pill”) works by preventing an egg from being fertilized by a sperm very shortly after sex. Because it’s not as effective as normal birth control pills, it shouldn’t be used as regular contraception but only in the case that you have just failed to use adequate protection and think you might get pregnant. There’s no age restriction for buying the morning-after pill; it is readily available over the counter in drugstores in most provinces.
Whereas birth control is the prevention of pregnancy, abortion is the termination of a pregnancy that has already begun. Abortion is a controversial issue. While a majority of Canadians now see it as a woman’s right to decide whether to have an abortion, this was not always the case, and there are still those who think ending a pregnancy is immoral. The decision to have an abortion or to refuse to do so is up to the woman: the child’s father can neither forbid her to have one nor compel her to. If you do get pregnant, you should get information from a reliable and neutral expert about what abortion involves before making a decision.
Abortion used to be a crime except when it was performed for certain health reasons, and the ban on abortions—section 287 of the Criminal Code—has never been formally repealed. However, it is no longer valid, thanks to the Supreme Court’s decision in R. v. Morgentaler (1988 CanLII 90 [SCC]), in which the Court ruled that this law violated a woman’s right to liberty, as guaranteed by section 7 of the Charter of Rights and Freedoms. As a result, abortion is legal across the country and may be performed at any time during the pregnancy without criminal charges, although the vast majority of abortions occur when the fetus is no more than 12 weeks old.
Where can I get an abortion?
Although abortion is legal everywhere in Canada, access to it varies. Some provinces have more locations that provide abortions than others, and rules that specify the conditions under which doctors may provide an abortion differ from one province to another as well. Generally, there are far more abortion providers in big cities than in rural areas. Abortions are performed in some public hospitals; there, you can obtain them for free, at least if you’re a resident of the province and have a provincial health card. However, in places where the local culture tends to be conservative, hospital staff may be reluctant to perform abortions and might encourage you to talk to someone, who would then try to convince you not to have it done. There are also “abortion counselling” services that try to appear neutral but that actually exist to persuade women not to have abortions.
Another option is private abortion clinics, which will generally provide the service without hesitation after you have spoken to a counsellor and have shown you really want to end the pregnancy. However, these clinics may not be free in every province.
Do I need my parents’ permission?
Generally speaking, as long as you use the services of a private abortion clinic, you don’t need your parents’ permission to have an abortion, and you don’t need to notify them either. If you go to a hospital, however, there is no standard rule. It depends on the laws in each province or territory and also on the rules of individual hospitals. In British Columbia, for example, there is no age restriction even for abortions performed in public hospitals. In Québec, however, you generally need to be 14 to get an abortion without parental consent, even in a private clinic, as this is the minimum age of consent for medical treatment in that province. Also, no matter where you are, some doctors may encourage teenage patients to discuss their decision with their parents.
Can my parents force me to get an abortion?
Although there is no law against your parents pressuring you to have an abortion, hospitals and clinics are unlikely to perform an abortion on a woman who says she doesn’t want one, even if she is a minor. The right to liberty and security of the person guaranteed by section 7 of the Charter of Rights and Freedoms can be interpreted to include the right not only to consent to an abortion but also to refuse one. In the unlikely event that a medical practitioner scheduled an abortion with a parent for a daughter who did not want one, she could contact child protective services. The matter could be taken to court, where a judge could be expected to issue an order preventing the abortion.
Being a Minor Parent
If, after all, a minor gets pregnant, she may choose to keep the child and raise it or to put it up for adoption. The child’s father might also have a right to be involved in this decision.6 However, no one may make this decision for the birth parents. If they choose to put the baby up for adoption, it will legally become the child of someone else, and the birth parents will give up all their legal rights and responsibilities to the adoptive parents.
Whether they are single, married, or divorced and whether they are living together or apart, if minor parents choose to keep the baby, then according to both common law and a number of provincial statutes, they have the same rights and responsibilities toward their child as do adult parents. At first, this may not seem like such a surprising thing, but, when you think about it, this rule makes the law somewhat inconsistent. There are a great many decisions, some of them relatively trivial, that minors—even those who are fairly mature—cannot make for themselves against the wishes of their parents. Yet if these same minors have their own child, they’re suddenly entitled to make all those same decisions for someone else, someone even more vulnerable than themselves, regardless of how mature they are. This inconsistency suggests to us that one reason the law fails to give young people more autonomy in relation to their parents is simply that most adults (the ones who make laws) still believe that parents have a right to control their children—not because all minors are necessarily too immature to handle more autonomy.
While becoming a parent does give you certain rights, if you show that you cannot take care of or support your child, or if you abuse it, your child can be put into the care of the state. Although in many cases the parents of minor parents are willing to help their children take care of their own child, they are not generally under an obligation to do so, which would seem to make sense given that they did not choose to have the grandchild.7 Minor parents have as much of a duty to support their child as do adult parents, and, like any parents, they may lose their child if they cannot or will not fulfill that duty.
In conclusion, sexuality and relationships are an area in which the law restricts your rights in some ways, partly to protect you from exploitation or abuse, yet also gives you greater rights as you get older. You have the option of exercising those rights. At the same time, relationships (especially sexual relationships) aren’t all about you. The choices you make affect the lives of other people close to you—not only your partner but also your parents and friends, and potentially your own child. This should motivate you to use your rights responsibly and carefully. Demonstrating responsibility in this very important area of life will also demonstrate your maturity, which will in turn give more weight to the claim that, as a young person, you deserve to be given greater autonomy in other areas as well.
1 This does not apply, however, if both participants are under the age of 12. Young children sometimes “mess around” with each other, partly out of curiosity, but until a child turns 12, he or she cannot be held criminally responsible for anything.
2 R. v. Blake (2003 BCCA 525 [CanLII]); R. v. T.C.F. (2006 NSCA 42 [CanLII]); R. v. C.M. (1995 CanLII 8924 [OCCA]); and R. c. Roy (1998 CanLII 12775 [QCCA]). In a 2002 Alberta court case, a lower court also ruled that section 159 was unconstitutional (R. v. Roth, 2002 ABQB 145 [CanLII]).
3 This is often called the “private use exception.” The Supreme Court first defined this exception in 2001, in R. v. Sharpe (2001 SCC 2 [CanLII]). Certain refinements were made to the definition in 2015, in R. v. Barabash (2015 SCC 29 [CanLII]).
4 Even though the minimum age was set at 16 quite some time ago, provinces and territories haven’t necessarily amended their legislation accordingly. For example, section 29(2) of the British Columbia Marriage Act still states: “If, on application to the Supreme Court, a marriage is shown to be expedient and in the interests of the parties, the court may, in its discretion, make an order authorizing the solemnization of and the issuing of a licence for the marriage of any person under 16 years of age.” This is by no means the only example—but all such provisions are now invalid.
5 Under section 6 of the Charter of Rights and Freedoms, all Canadian citizens have a right to reside in Canada, as well as leave and return to the country. But if you’re still a minor and have only permanent resident status, your parents could actually apply on your behalf to have you relinquish that status. (They cannot apply to have your citizenship revoked, however: only a citizen himself or herself can renounce citizenship, and you must be 18 to do so.) If you think your parents may be planning to have your permanent residency revoked, you should definitely consult a lawyer.
6 A father’s rights in this matter are complicated, and they depend on which province or territory you live in. If you want to know what rights you have as the father of your child (or, if you are the mother, what rights your child’s father has), we recommend you speak to someone who is an expert in the laws where you live.
7 Article 585 of the Québec Civil Code does say, however, that relatives “in the direct line in the first degree”—that is, parents, offspring, and siblings—owe each other support.