What is the Law?
Canadian Criminal Code offences against sexual assault, criminal harassment, child sexual abuse and exploitation
The Criminal Code defines sexual assault and criminal harassment. It is vital to civil society to have laws that criminalize sexual violence. However, it is also important to note that these codes address a very small proportion of the sexual violence perpetuated.
The Criminal Code protects all Canadians, including children, against sexual abuse and exploitation from:
- Level one sexual assault (section 271); causes little or no physical injury
- Level two sexual assault involves a weapon, threats or bodily harm (section 272);
- Level three aggravated sexual assault involves physical wounds, disfigurement, a death threat (section 273), voyeurism (section 162), obscenity (section 163) and trafficking in persons (section 279.01)
Children are also protected by child specific offences in the Criminal Code. These offences include the following:
- Sexual Interference (section 151) - no one can touch any part of the body of a child under the age of 16 for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Invitation to Sexual Touching (section 152) - no one can invite a child under the age of 16 to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Sexual Exploitation (section 153) - no one in a position of trust or authority over a 16 or 17 year old (for example, a teacher, religious leader, babysitter or doctor) or upon whom the young person is dependent, can touch any part of the body of the young person for a sexual purpose or invite that young person to touch himself/herself or them for a sexual purpose. The penalty for this offence is a mandatory minimum period of imprisonment of up to a maximum of 10 years;
- Incest (section 155) - no one may have sexual intercourse with their parent, child, brother, sister, grandparent or grandchild. The penalty for this offence is a maximum of 14 years imprisonment
- Child Pornography (section 163.1) - no one may make, distribute, transmit, make available, access, sell, advertise, export/import or possess child pornography. Child pornography is broadly defined and includes materials that show someone engaged in explicit sexual activity who is, or seems to be, under the age of 18 years; or show a young person’s sexual organ or anal region for a sexual purpose. Child pornography also includes written and audio material that encourages others to commit a sexual offence against a child, or is primarily a description of unlawful sexual activity with a child that is intended for a sexual purpose. The penalties for these offences are mandatory minimum periods of imprisonment and vary up to a maximum of either 5 or 10 years;
- Luring a Child (section 172.1) - no person may use a computer system, such as the Internet, to communicate with a young person for the purpose of facilitating the commission of a sexual or abduction offence against that young person. This offence is sometimes called "Internet luring". The penalty for this offence is a maximum of 10 years imprisonment;
- Exposure (subsection 173(2)) - no one may expose their genital organs for a sexual purpose to a young person under the age of 16 years. The penalty for this offence is a maximum of 6 months imprisonment;
- Procuring (sections 170 and 171) - it is against the law for parents and guardians to procure their child under the age of 18 years to engage in illegal sexual activity or for owners, occupiers or managers of premises to allow a person under the age of 18 to be on those premises to engage in illegal sexual activity. The penalties for these offences include mandatory minimum periods of imprisonment and vary up to a maximum of 10 years imprisonment.
- Child Prostitution (subsections 286.1(2), 286.2(2) and 286.3(2)) - it is against the law for anyone to offer or obtain the sexual services of a young person under the age of 18 years, to materially benefit from child prostitution or to procure a person under the age of 18 for the purposes of prostitution. The penalties for these offences include mandatory minimum periods of imprisonment and vary up to a maximum of 14 years imprisonment.
- Bestiality (section 160) - it is against the law for anyone to engage in sexual activity with an animal, including making a child do this or doing this in front of a child. The penalties for these offences vary up to a maximum of 10 years imprisonment; and,
- Child Sex Tourism (subsections 7(4.1) 7(4.3)- it is against the law for a Canadian to travel outside of Canada and engage in any sexual activity with a young person that is against the law in Canada. If the Canadian is not found guilty of committing such a sexual offence in the country where it occurred, the Canadian could be convicted in Canada and would face the same penalty as if that offence had occurred in Canada.
In addition to these criminal laws against child sexual abuse and exploitation, each province and territory has its own laws to protect children against abuse, exploitation and neglect.[Justice Canada: Frequently Asked Questions: Age of Consent to Sexual Activity]
Ontario Human Rights Commission
The Ontario Human Rights Code defines sexual harassment. In matters of sexual harassment, in the early 2000s Human Rights cases began to analyze the lived experience of people rather than making decisions based on their character. The change recognized that people have “social handicaps” because of society’s response to them as member of a minority group or historical context.
A person’s “social location” continues to be the single most important predictor of the likelihood of experiencing sexual violence. While the greatest risk factor is being female, the risk of experiencing sexual violence increases when one is young, old, poor, a person of colour, Aboriginal, an immigrant, Deaf, a person with a disAbility, a sexual orientation or gender identity which does not conform to heterosexual gendered norms, and is criminalized or is institutionalized. Sexual violence occurs within a context of oppression including sexism, racism, ableism, hetereosexism, ageism and classism.”
The Child and Family Services Act
The CFSA defines sexual abuse as a reason for a child under the age of 16 to be found in need of protection.
Ontario Occupational Health and Safety Act
The Occupational Health and Safety Act requires employers to protect Ontario workers from all forms of violence including domestic violence and sexual harassment.
- Section 264: “Criminal harassment”
- Section 265: “Assault”
- Section 266: “Assault”
- Section 267: “Assault with a weapon or causing bodily harm”
- Section 268: “Aggravated assault”
- Section 271: “Sexual assault”
- Section 272: “Sexual assault with a weapon, threats to a third party or causing bodily harm”
- Section 273: “Aggravated sexual assault”
- Section 273.1: “Meaning of “consent””
Sections Relating to Adolescents under Age Sixteen:
- Section 150: “Sexual offences” (including close-in-age variations on age of consent for adolescents in Canada)
- Section 151: “Sexual interference”
- Section 152: “Invitation to sexual touching”
- Section 153: “Sexual exploitation”
- Section Relating to Adolescents under Age Eighteen:
- Section 159: “Anal intercourse”
- Section 163.1: “Child Pornography”
Occupational Health and Safety Act
- Part III.0.1: “Violence and Harassment”
Human Rights Code
- Section 7: “Sexual Harassment”
Child and Family Services Act
- Section 72: “Duty to Report”