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 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)