Sex and the Law

English language excerpt
Chinese language excerpt
Punjabi language excerpt
Persian language excerpt
Spanish language excerpt

Easy-to-understand information about sexual and reproductive health rights in Canada is not readily available, even in our two Official Languages. Imagine if you are new to Canada, trying to learn a new language and how a new society operates, and unfamiliar with your rights to health care and personal protection.

With support from the Law Foundation of British Columbia, Opt undertook a project to provide accessible legal information about sexual health rights to the general public, including individuals of diverse cultures.

The Sex and the Law project builds on work that was initiated in 2003. At that time, individuals from various cultural and newcomer communities identified the information most important for them to know. This was done through questionnaires and focus groups conducted in four languages (English, Punjabi, Chinese, and Tagalog).

In 2010, Opt began the process of revising our Sex and the Law resources, and have published an updated pamphlet, Sex and the Law: A review of your sexual rights and responsibilities in Canada. The pamphlet discusses topics including:

Sex and the Law: A review of your sexual rights and responsibilities in Canada is available in English, Chinese (simplified), Punjabi, Persian and Spanish and can be ordered here.

Individuals seeking general information about sex and the law in Canada can call the SEX-SENSE Line at 1-800-739-7367 or 604-731-7803 in the Lower Mainland. Groups can also book an education session with a legal or sexual health educator.

Consent

What is legal sex?

Sex is legal when the participants consent to it and are legally and mentally able to give consent.

It’s about consent

Consent means saying yes to something, provided that you are able to understand what you are agreeing to and can give your consent freely. What does it mean when sex is involved?

  • You have the right to choose with whom you will be sexual and what sexual activities you are willing to do. You have the right to choose whether or not to marry. You must consent to these choices before they are acceptable.
  •  You have the right to use any kind of birth control that is safe for you (including emergency contraception). You do not need permission from a spouse, sexual partner, parent, guardian or caregiver, no matter how old you are. Your consent is all that matters (again, as long as you understand what you are agreeing to).
  •  A woman of any age has the right to avoid a pregnancy, carry a pregnancy to term, or end a pregnancy. No one else (mother, father, husband, boyfriend, girlfriend, partner, etc.) has the right to make that decision for her. Her personal consent is all that counts.

Consent also means that everyone has to agree to have sex before something starts without being pressured to do it by anyone else. If one of you is drunk, on drugs, or feels scared or forced, the consent you give or get doesn’t count. You can also change your mind at any point if you do not want to continue having sex (so can your partner), by taking back your consent (saying no or “stop”).

More information about this topic (external links)

Mutual consent (West Coast LEAF)

What is informed consent?

Informed consent is a particular idea that applies to decisions you make about your sexual health care. It means that you are entitled to be told all the relevant facts about your condition and the benefits and risks that go with your treatment before you agree to anything. You do not have to give your consent to treatment until you feel that your questions have been answered and you know enough to make a decision that is right for you.

There is another time when informed consent is important. You are also entitled to know if you could be at a significant risk of HIV infection from a partner who is HIV+. If you are HIV+ yourself, you have a legal duty to inform your partner, before you have sex. The law has not yet defined exactly what “significant risk” means, but having sex without a condom would be one example of a high risk activity for HIV infection. Play it safe: tell your partner if you are HIV+.

More information about this topic (external links)

HIV disclosure: criminal law and HIV (Canadian HIV/AIDS Legal Network) (Note: this link seems to change regularly. Please search http://www.aidslaw.ca/criminallaw and let us know if the above link is broken.)

Who is too young to have sex?

Generally, you must be 16 years of age or older to have sex legally in Canada, with some exceptions. If you are under 16 and have engaged in sexual activity with someone who does not fit the exceptions you have not broken the law, the adult has. The exceptions are:

  •  A 12 or 13 year-old can consent to sex with someone less than 2 years older.
  •  A 14 or 15 year-old can consent to sex with someone less than 5 years older.
  •  A person under the age of 18 cannot legally consent to sex with someone in a position of authority (e.g., teacher, coach, babysitter, family member, employer, etc).
  •  Sex with a person under the age of 12 is illegal. It is a sexual assault.

More information about this topic (external links)

Age of Protection (Department of Justice Canada)

Sexual and reproductive health services

If I go to the doctor, what does my doctor have to tell my parents/partner?

Generally, your doctor has to respect your privacy as a patient and cannot repeat anything you say as a patient without your consent. There are some exceptions. For example:

  • If you have a communicable disease, such as a sexually transmitted infection, your doctor is required to report certain information to the local health authority.
  • If you pose an imminent risk of harm to yourself or others, your doctor must report that to the authorities.
  • Your doctor must also report suspected child abuse, including sexual abuse.

If you are under 19 or have a particular concern, it is a good idea to check with your doctor about what information will be kept private before discussing it.

More information about this topic (external links)

Are your medical records confidential? (Canadian Bar Association)

Is abortion legal in Canada?

Yes. A woman may have a legal, safe, and completely confidential abortion, done by a properly trained doctor in a hospital or clinic. You do not need to put your life or health in danger. You don’t have to explain your decision. You do not need anyone else’s consent to have an abortion, but you must be able to give your consent knowing what you are agreeing to.
 

Marriage and relationships

Do I have to be married to have sex?

Marriage is defined differently in different cultures. In Canada, you do not have to be married to have sex legally. And just having sex or living together does not mean that you and your partner are “married”, even if you have lived together for many years.

What’s the difference between being married and living common-law?

Marriage can be an important part of a sexual relationship. To be married in BC you must apply for a marriage license and have a ceremony witnessed by two people. The ceremony must be conducted by someone licensed to perform marriages, such as a marriage commissioner or some religious leaders. This person also registers you with the province as legally married. Any other arrangement is not legal marriage.

“Common law” is when a couple (either opposite-sex or same-sex) lives together for a certain amount of time. In BC, that time is 2 years. Your legal rights in marriage and “common law” may be different depending on where you live.

More information on this topic (external links)

Getting married (Canadian Bar Association)

Common law relationships property issues (People's Law School)

Family law overview (long document) (MOSAIC: Public Legal Education Project for Newcomers)

Is the law the same for people in same sex relationships?

Having sex with someone of the same sex, and being gay/lesbian (loving someone of the same sex in a romantic way) is legal in Canada and all the same laws apply. Same sex marriage is legal in Canada.

More information on this topic (external links)

Same sex relationships (Canadian Bar Association)
 

Parental responsibilities

What are the responsibilities of parents?

In Canada, a child has the right to be provided for until the age of 19. If you are a parent you must financially support your child until that time. Your financial responsibility for your child continues even if your child does not live with you or if you are in a new relationship. You cannot “barter” away your legal responsibility for child support, even if the other parent agrees. If you do not pay the child support you are required to pay, the other parent or the government can take legal action against you, no matter where you live.

If a child is being raised by someone other than a biological parent, the caregiver may apply to be the legal guardian in order to have legal rights regarding the child. The biological parent is the legal guardian unless someone else has legal guardianship.

More information about this topic (external links)

Children born outside of marriage (Canadian Bar Association)

Being a parent: your legal obligations in "Living Together or Living Apart" (long document, see pages 19-25) (Legal Services Society BC)

What are the rights and responsibilities of a father who is under the age of 18? (Sex and the Law factsheet, SexualityandU.ca)

What is a man wants to be sure that he is, or is not, the father of a child?

A man can take a DNA test to be sure that a child is his biological child. The test costs between $600 and $1500. Even if a man is not the biological father of the child, a judge could order him to pay child support if he has been acting as the child’s parent.

Laws on pornography and sex work

Is pornography (porn) or cyber sex illegal?

  • Some porn is illegal. It is illegal to view or own “kiddie porn” (written or visual material with children who appear to be under the age of 18 engaging in sexual activity, even if they’re in the background) or “snuff” porn (where somebody dies).
  • It’s against the law for children to see porn, so if you use it you must keep it away from children.
  • Most employers also have policies against porn in the workplace. You may be fired if your employer finds porn on your work computer.

Cyber sex is using the Internet for sexual purposes, for example, by exchanging sexual messages with another person. It is illegal to lie about your age and you must be sure that your cyber-partner is old enough by the laws of where he/she lives to have sex. Remember: the laws are different in each place. It is illegal to lure someone too young to have sex to have cyber sex with you.

More information about this topic (external links)

What types of material are considered to be child pornography? (SexualityandU.ca)

Is it legal to buy or sell sex?

The sale of sexual services between consenting adults is legal in Canada. Paying for sex from anyone under the age of 18 is illegal. Three other activities related to the sale of sex are prohibited in the Criminal Code. They are:

  • being found in or operating a brothel (‘bawdy-house’)
  • talking in public (e.g., on the street, in a car or bar, etc) about exchanging money for sex
  • procuring or receiving profits in an exploitive way from someone else who is exchanging money for sex (this is sometimes called pimping)

In 2010, these three prohibitions were challenged in the courts. Until the court proceedings are completed, you should assume that these three activities are still illegal.

More information about this topic (external links)

Understanding the Criminal Code on sex work

Info sheet 3: Prostitution Offences in the Criminal Code (Canadian HIV/AIDS Legal Network)

The law of sex work (Ontario Women's Justice Network)

Sexual harassment, discrimination, and sexual assault

What is sexual harassment?

Sexual harassment is unwelcome behaviour (including talking, pictures or objects, and actions) that is sexual in nature. Sexual harassment is a type of sex discrimination and it is illegal in Canada. This is especially important to remember when you are at work, because the law protects you from sexual harassment regardless of whether you work in a very small workplace (e.g., you are a nanny) or a big one. The law requires your employer to make sure everybody at work knows what sexual harassment is, that it is not allowed, and that there will be negative consequences for people who sexually harass others.

More information about this topic (external links)

Sexual harassment (West Coast LEAF)

Sexual harassment (Canadian Bar Association)

Stalking (Department of Justice Canada)

What protection is there against sex discrimination?

Discrimination is treating someone badly based on a prohibited ground of discrimination, such as race, religion, disability, sexual orientation, sex, family status, and so on. Sex discrimination is one type of discrimination. It is closely connected to sexual orientation discrimination and to family status discrimination (treating you badly based on your family, for example, whether or not you have children, or who your spouse is). Some examples of sex discrimination are:

  • refusing to hire you or firing you because of your sex or because you are pregnant
  • refusing to rent you an apartment or other housing because of your sex or the sex of your partner
  • refusing to provide you with service in a restaurant or bar or store because of your sex

The same examples apply to discrimination based on sexual orientation. Transgender persons are also protected from discrimination on the prohibited grounds.

More information about this topic (external links)

Human rights and discrimination protection (Canadian Bar Association)

What is sexual assault?

Sexual assault is any unwanted sexual act that is forced on a person, and it is a crime. Sexual assault is a crime even if the person doing it is your husband, wife, partner, girlfriend or boyfriend. It includes all unwanted sexual acts, not just intercourse or oral sex. You have been sexually assaulted if the reason you let someone have sex with you is because you have been scared or because you are afraid you will be hurt. A sexual assault can also occur if someone has sexual activity with you if you are drunk, on drugs, passed out, or asleep. Gay-bashing (insulting, touching, or hitting someone you think is homosexual) is another form of sexual assault. It is also illegal and in some circumstances is also a hate crime.

More information about this topic (external links)

Sexual assault (West Coast LEAF)

Sexual assault (SexualityandU.ca)

Laws on sexual assault (SexualityandU.ca)

Information for immigrants sponsored by spouses (Legal Services Society)

What should I do if I have been or think I have been sexually assaulted?

There is no right or wrong way to act if you are being sexually assaulted. Say “no” if you can. Fighting back may stop the attack, but it may make it worse.

  • Right after you have been sexually assaulted it is best not to have a shower, bathe, douche, eat, drink, pee, or change your clothes. You can go to the nearest hospital emergency room and tell them what happened so they can help you. Generally, the hospital will only contact the police if you consent. If you do not wish to have the police contacted, you should make your wishes clear.
  • You can also get help by talking to a counselor at a hospital, Victim Services, a telephone crisis line, or a sexual assault centre. A counselor can help you figure out what to do and how to begin to recover.
  • You can find a list of local agencies on the Internet by searching for “crisis centre”, or in the phone book yellow pages under “crisis”.

What happens if I report a sexual assault to the police?

The police will want you to answer their questions about what happened so that they can write a report. If the sexual assault happened recently, they may want you to go to the hospital to make sure you are okay and to have the medical staff collect evidence. You can choose whether or not you want to do this. The police may assign someone from Victim Services to go to the hospital with you.

The police will investigate the assault and gather evidence. They will then ask the Crown (government) to lay criminal charges against the person or people who assaulted you. Only the Crown can decide whether to lay criminal charges; you cannot lay a charge yourself. You can ask the Crown not to lay charges if you do not wish to proceed, but the Crown can decide to lay charges even without your consent. If the Crown lays charges, you may have to testify in court.

The police do not release any information about you to the public, newspapers, family, or the accused person. If you feel unsafe after the person who assaulted you has been charged, you should tell the police so they can help you to find a safe place.

What happens if I want to drop the charges?

Only the Crown can decide drop to charges; you cannot make this decision. If you refuse to testify, the Crown will decide whether to proceed with the charges anyway. The Crown has the authority to make you testify, even if you don’t want to. In court, the judge also considers the wishes of the victim. If the victim refuses to testify, the judge could choose not to proceed.