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Toys and Consent—What’s The Law?

Toys and Consent—What’s The Law?

Please note: Emely is a licensed lawyer in the Province of Ontario. This article is for educational purposes only. Nothing in this article is, nor is it a substitute for legal advice.

When it comes to sex, we all have questions. Whether it relates to the physical, preferential, or positional, curiosity abounds. But what about legal questions? At what age can a person legally consent to sex? Does consent change if toys are involved? How does the use of the internet instead of a physical location play a role?

What is the “Age of Consent?”

To answer these questions, we should first understand what the term “age of consent” means and what activity(ies) can be consented to. According to section 150.1 (1) of the Criminal Code of Canada, a person can legally consent to sexual activity at 16 years of age as a general rule. Exceptions to this rule exist when the other party is in a position of trust or authority over the minor, or if the parties in question are “close in age”, along with other mitigating factors such as how the relationship developed. In terms of what activities can be consented to, as of June 2019, Parliament passed bill C-75 which repealed section 159 of the Criminal Code. This allowed minors aged 16 or older to consent to any type of sexual activity and does not necessarily have to involve the touching of body parts to be considered a sexual act or activity. Prior to this, section 159 only permitted “husband and wife, or any two persons, each of whom is eighteen years of age or more”, from consenting to anal intercourse before age 18 when such act was done in private.

When it comes to the use of sexual implements such as toys, there is no specific legislations limiting or prohibiting their use my minors. Instead, the Criminal Code focuses on the vulnerability and power dynamics between the parties, regardless of what is used and what is not.

Based on this, when it comes to minors and the use of sexual toys and other implements, it is legal for such items to be used, provided the minor is at least 16 years old and no position of power or authority exists between the partners. Failing to ensure these two elements are present can lead to some very serious consequences for the adult partner, the majority of which carry sentences of 10 to 14 years prison time if you are found to be guilty. Since both legislation and courts deem minors to be vulnerable and in need of protection from predators given their age and inexperience, consequences for the minor are unlikely. Aside from the more well-known criminal offenses of sexual assault and voyeurism, failure to ensure a minor is of the appropriate age and not in at a power imbalance can lead to charges of:

  • Sexual interference
  • Invitation to sexual touching
  • Sexual exploitation
  • Charges related to child pornography (making, viewing, accessing, distributing, etc.)
  • Trafficking of minors
  • Child prostitution
  • Exposure
  • Non-consensual distribution of intimate images (“revenge porn”)

    When considering the location of the sexual activity, the required age and consent elements do not change. However, each province and territory in Canada does have additional child welfare laws that protect against abuse, exploitation, and neglect. These laws can vary greatly between provinces and territories, so these will not be discussed here. When it comes to the internet, Canadian legislators are making several investments and developing laws to empower police services to better investigate sexual crimes against minors on the internet and to increase the punishments for engaging in sexual activity.

                Much like sexual acts themselves, the answers to legal questions is rarely clear-cut and often leave much room for interpretation. So, while certain acts or practices may be permitted at all, it is often prudent to exercise a high degree of caution when participating in them and to err on the side of caution.

    About the writer

    Emely Melendez

    Emely Melendez is Western’s Privacy Office since October 2021. Much of Emely’s experience has been working in in-house roles, which has allowed her to advise on all these areas and which has allowed her to see the bigger picture when working with clients in high-stakes negotiations or sensitive files. Prior to joining Western, Emely has practiced in several areas, including immigration and refugee protection law, employment law, health law, military law, healthcare law and corporate/commercial law. Emely graduated from Western in 2011 with an Honors Specialization in International Relations and Major in French Language and Literature. During her time at Western, Emely also attended the Université de Tours in Tours, France as part of an international exchange and was regularly part of the honour roll. Emely graduated from the University of Ottawa’s Programme de droit canadien in 2015, a bi-jural program in common law and civil law. She was called to the Bar of Ontario in 2018. Emely has also been a member of the Royal Canadian Navy since 2007. Serving the military has allowed Emely to visit many parts of Canada and has made her well-versed in matters touching on federal level privacy law, employment law and grievance management, fairness investigations, and public affairs. In 2020, she was awarded her Canadian Decoration (CD) for Meritorious service.

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