Exception Complainant Aged 12 or 13

This section provides a defense for an accused charged with certain sexual offenses if the complainant is between 12 and 14 years old and gave consent, provided the accused is not more than two years older and not in a position of trust or authority over the complainant.

Section 150.1(2) of the Criminal Code of Canada outlines the conditions under which an accused can use consent as a defence in cases involving sexual activity with a complainant who is between the ages of 12 and 14. Under Canadian law, sexual activity with someone under the age of 16 is considered statutory rape, regardless of whether or not the complainant consented to the activity. However, this section provides an exception for cases where the accused is not more than two years older than the complainant and does not hold a position of trust or authority over them. Additionally, the accused cannot be in a relationship of dependency with the complainant or in a relationship that is exploitative of them. The purpose of this defence is to differentiate between situations that involve non-consensual sexual activity and those that involve consensual sexual activity between two people who are close in age and have a balanced power dynamic. It ensures that individuals who did not engage in non-consensual sexual activity with a minor are not unfairly punished for their actions, while still protecting minors from sexual exploitation and abuse. It is important to note that this defence does not apply to situations where the complainant is under the age of 12, as children at this age are considered unable to give informed consent to sexual activity. If the accused is more than two years older than the complainant, in a position of trust or authority over them, or in a relationship that is exploitative or dependent, they may still be charged with sexual assault even if the complainant apparently consented to the activity.

Section 150.1(2) of the Criminal Code of Canada has proven to be a highly controversial and highly debated piece of legislation since its implementation. This section pertains specifically to cases where an individual has been charged with offences such as sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault against a complainant who is aged 12 or greater but less than 14 years of age. The section sets out a two-year age gap defence which allows for an accused, who is less than two years older than the complainant, to argue that the complainant provided consent to the sexual activity in question. This section of the Criminal Code has been heavily criticized as it is believed to undermine the rights and safety of children, particularly given the vulnerability of children who are still developing and may not fully understand the ramifications of their actions. Advocates for the rights of children argue that this defence may allow individuals who are technically guilty of committing sexual crimes against children to be acquitted, despite the fact that they have taken advantage of a power imbalance and the child's inability to truly consent. There are several criticisms and issues with this provision under the Criminal Code. Firstly, there is the issue of determining the age of the complainant. Although the distinction between a 12-year-old and a 13-year-old is relatively clear-cut, individuals who are 14 or 15 years old present a much more difficult challenge. This can be problematic as it is possible for an accused who is more than two years older than the complainant to argue they believed the complainant was over the age of 14 when, in fact, they were not. Secondly, there is the issue of trust and authority in the relationship between the accused and the complainant. The defence in section 150.1(2) only applies if there is no position of trust or authority held by the accused over the complainant. Some judges have interpreted this to mean solely a professional or institutional relationship such as a teacher or coach, while others have interpreted this to be far more expansive and have refused to apply the defence even when there was no clear power imbalance or control of the accused. Thirdly, this legislation does not account for the power differential between an adult and a child. Even in cases where the accused is only slightly older than the complainant and there is no inherent power dynamic or trust and authority relationship between the two parties, it is still easy for the accused to use their heightened level of experience or maturity to pressure or influence the complainant into participating in sexual activity. This power imbalance has been long recognized as central to the exploitation of children and youth, making this defence potentially dangerous and problematic. Finally, the defence appears to be ineffective in achieving its intended purpose. As previously stated, the provision only applies in cases where the accused is less than two years older than the complainant and where there is no power dynamic or relationship of trust. It is worth noting that the vast majority of cases involving sexual activity between individuals under 14 years of age and those over 16 years of age involve a power imbalance, often resulting in manipulation or coercion from the older individual. This defence, therefore, may only apply to a very small number of cases, making it ineffective in achieving its stated goal. In conclusion, Section 150.1(2) of the Criminal Code of Canada has been a highly controversial and contentious piece of legislation since its implementation. While it was created to provide for the protection of young individuals, it may ultimately undermine those same protections and put children and youth at risk of exploitation and abuse. As such, this provision should be revisited and revised in order to address the concerns and criticisms raised by child advocates and legal experts alike.

Section 150.1(2) of the Criminal Code of Canada provides a defence for an accused when charged with an offence under section 151 or 152, subsection 173(2) or section 271 in relation to a complainant who is between the ages of 12 and 14. In such cases, the accused may argue that the complainant consented to the activity in question if the accused is less than two years older than the complainant, is not in a position of authority or trust over the complainant, and is not in a relationship of dependency or exploitation with the complainant. Strategic considerations when dealing with this section of the Criminal Code largely depend on the specific facts of the case, but there are some general strategies that could be employed. Firstly, it is crucial for the defence to gather evidence regarding the age of both the accused and the complainant, as well as their relationship and any potential power dynamics between them. Evidence of the complainant's consent must also be obtained, such as text messages or other electronic communications. Additionally, the defence may want to consider retaining expert evidence to support their argument that the activity in question was consensual, such as a psychologist or social worker with expertise in the area of sexual relationships between minors. It may also be beneficial to explore potential weaknesses in the Crown's case, such as inconsistencies in the complainant's testimony, or evidence that they were aware of the illegality of the activity but engaged in it anyway. Overall, the key to successfully employing the defence under section 150.1(2) is carefully strategizing and gathering as much evidence as possible to support the argument that the activity in question was indeed consensual and that the accused meets the specific requirements outlined in the section.