TORONTO — A cornerstone law aimed at protecting teens from sexual exploitation by adults is constitutional, even if the sex is clearly consensual, Ontario's top court has ruled.
The decision affirms a section of the Criminal Code that bars any sexual activity involving teens aged 14 and 15 and partners more than five years older.
"For an adult to suggest that, by excluding him from the close-in-age group, Parliament has made the law overbroad is to misunderstand the protective purpose of the law," the Court of Appeal ruled.
Court files show the accused in this case was 21 years old when he began a romantic relationship with a 15-year-old girl he had known for several years. The relationship — described at trial as positive — lasted 11 months and progressed to sexual activity.
Evidence was that the girl wanted and instigated the sex, while he was initially reluctant because she was not yet 16 — the legal age for consent.
After she became pregnant — she had stopped her birth control without telling him — she had an abortion, and a child-welfare agent reported him to police, who charged the young man with various sexual offences.
Even though the girl was a willing partner, part of the Criminal Code — Section 150.1 — barred the accused from raising consent as a defence. The impugned law does allow a teen aged 14 to 16 to agree to sexual activity — but only if the partner is less than five years older and there is no relationship of trust.
As a result, he was found guilty of sexual assault and sexual touching in June 2011 but Judge Lisa Cameron of the Ontario Court of Justice refused to enter a conviction. She found there had been no coercion or exploitation, and no criminal intent. Cameron described the young woman as mature for her age, intelligent and independent, and called the relationship "loving and respectful."
Instead, Cameron found the age-gap law violated the young man's constitutional rights and stayed the proceedings. The prosecution appealed.
In October 2012, Superior Court Justice Bruce Glass ruled the law did not violate the charter and Cameron had made legal errors. He concluded the ban on raising consent automatically kicked in because the young man knew his girlfriend was 15. Glass set aside the stay and sent the case back for sentencing. Cameron imposed a conditional discharge.
The young man turned to the Court of Appeal.
In essence, he argued, the otherwise well-intended law goes too far and is at odds with the principles of fundamental justice.
The federal government countered that the law is part of a legal framework aimed at protecting young people from any and all sexual involvement with adults given the inherent power imbalance. The Appeal Court agreed.
The protective purpose of the law, which Cameron failed to understand, is reasonable, the court ruled, adding lawmakers were entitled to create a "close-in-age exception" that allows teens to have age-appropriate sexual relationships.
The justices also disagreed with Cameron's assessment that the girl didn't need legal protection. They noted her mother had died, she was estranged from her father, was living alone, and had ended up pregnant and having an abortion.
"Although the appellant may not have intended to exploit the complainant, she clearly suffered emotional and psychological harm from engaging in a sexual relationship with him," the Appeal Court found.
