Andrew just turned 20 years old and graduated from high school this week. This Saturday he is going to prom with his 14-year-old girlfriend, Maria, who is in grade 9. Andrew and Maria have been dating for about six months and Maria has decided that she would like to lose her virginity to Andrew at prom.
On prom night, Andrew’s parents are not home. Andrew grabs several of the beers from the fridge and puts them in his backpack.
Once he arrives at prom, Andrew gives several of the beers to his friends to drink. These friends are all under age 19. His girlfriend Maria also grabs a beer from Andrew’s backpack and mixes it with her pop. She drinks the alcoholic beverage without the teachers noticing.
Andrew and Maria are having fun at prom and dancing to the music. They decide to sneak into the washroom to have sex. Luckily no teachers come into the washroom but a couple of students walk in and then run out in embarrassment.
Will Andrew and Maria face any legal repercussions from their actions on prom night?
Sexual Activity and the Age of Consent
The age of consent refers to the age at which a young person can legally consent to sexual activity. All sexual activity without consent, regardless of age, is a criminal offence.
Whether to consent to sex is always your decision. The Canadian law requires that all people participating in sexual activity must give their own consent: you decide whether you want to be involved in any kind of sexual activity, from kissing and touching to intercourse.
However, the law sets some limits on that, so that it is illegal if you are below a certain age to be sexually involved with certain other people. This means that if you are too young to consent to sex with a particular person, that older person could be charged with a criminal offence.
The general age of consent for sexual activity in Canada is 16 years. This means that if you are 16 or older, you can consent to sex with anyone older than you.
The Criminal Code provides “close in age” or “peer group” exceptions whereby a 14 or 15 year old can consent to sexual activity with a partner as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person.
A similar exception exists for 12 and 13 year-olds: they can consent to sexual activity with a partner who is less than two years older than them.
In all of these cases, however, if you are under 18, you cannot legally consent to sex with someone who is in a position of trust or authority over you (like your teacher, swim coach, Pastor). That person could be charged with a criminal offence.
In this prom scenario, because Maria is only 14 and Andrew is six years older than her, any sexual activity between them is illegal. This includes kissing and sexual touching. Andrew could face serious punishments for this as a regular sexual assault (see Criminal Code section 271) or the child-specific criminal charge of sexual interference or invitation to sexual touching (see Criminal Code section151 and 152).
Underage consumption of alcohol
Maria is too young to legally consume alcohol. According to ss.30(8) of the Liquor Licence Act, it is illegal for a person under the age of 19 to have, consume, attempt to purchase or otherwise obtain alcohol. The only exception to this prohibition is where parents provide alcohol to their own children, at home with parental supervision.
Andrew is also in violation of the Liquor Licence Act for knowingly providing his underage friends with alcohol.
Both Maria and Andrew may be charged under the Liquor Licence Act and be made to appear in Provincial Offences Court.
Sex on school property
Depending on the school’s Code of Conduct, the school principal may decide to sanction Maria for illegally consuming alcohol and having sex on school property. It is possible that she could be suspended. (To read more about suspension, check out JFCY’s legal info pamphlet.
Since Andrew has already graduated, the school can’t suspend him but they could make a report to the police and refuse to let him back onto the school property in the future.
This scenario was written by PLE Team volunteer Tracy Chen, a joint LLB/MBA student at York/Osgoode. The legal info was written by JFCY summer law student Robin McNamara (UofT) and reviewed by a JFCY lawyer.