An article for physicians by physicians
Originally published June 2010 / Revised July 2021
The Criminal Code sets out the age of consent for sexual activity. Physicians should be guided by legislation in each province and territory on their duty to report such activity to the appropriate authorities if there are reasonable grounds to believe the child is being abused.
A member-physician called the CMPA asking if he had a duty to report the following situation to the police or to the child protection agency:
A 14-year-old girl requested a prescription for the birth control pill. She revealed that she had been sexually active with several boyfriends who were not using condoms, and that her current boyfriend is 27 years old. He is neither a teacher nor a coach, and is not in a position of authority. There is no history of violence in their relationship. Her parents are divorced and she lives with her father.
What the Criminal Code says
The Criminal Code of Canada sets the age of consent for non-exploitive sexual activity at 16 years. The age of consent for exploitive activity (prostitution, pornography or relationship of trust, authority or dependency) is 18 years.
The age of consent stipulated in the Criminal Code is not intended to prohibit consensual sexual activity between young persons. For this activity, the law permits the following:
- Youth of 14 or 15 can consent to sexual activity with a person who is less than five years older.
- Youth of 12 or 13 may engage in consensual sexual activity with a peer who is less than two years older.
Children younger than 12 are judged incapable of consenting to any sexual activity with any person, regardless of the person's age.
All sexual activity without valid consent constitutes a sexual assault, regardless of age.
Duty to report
Every province and territory has legislation that imposes a duty on physicians to report to a child protection agency if there are reasonable grounds to believe that a child is in need of protection (which includes sexual abuse).
Although the Criminal Code does not oblige a physician to report a sexual offence, physicians must consider whether they have such an obligation under their provincial/territorial legislation.
For example, if a physician suspects that a youth is engaging in sexual activity with a person who is older than the exempted age difference, the physician may be required to report this information to a child protection agency, particularly where the child's parent is unwilling or unable to protect the child. A similar reporting duty may exist if the physician suspects a child under the age of 12 is engaged in any sexual activity. The physician will wish to consider many factors including the extent to which the child is at risk of sexual abuse or exploitation, and the nature of the relationship with the parents.
Does a physician have any obligation to inform parents?
CMPA members have raised the issue of whether it is permitted to discuss with parents a child's consenting sexual relations. In Canadian common law jurisdictions (all provinces other than Québec), this depends on whether the child is considered by the physician to be a mature minor, that is, a person deemed to have the capacity to independently consent to medical treatment. If in the physician's judgment the patient is a mature minor, the physician cannot inform the parents without the patient's consent. In Québec, the parents of a child less than 14 years old have a right of access to information contained in the child's medical record, whereas the authorization of a child 14 years or older is generally required to disclose information contained in that child's medical record. In all jurisdictions, if the physician has grave concerns for the safety or well-being of the child, the physician should consider whether a report to the minor's parents and/or other authorities is necessary. Members may wish to contact the CMPA for advice in such circumstances.
Does a physician have a duty to report to the police?
A physician does not have a duty to report a criminal sexual offence to the police. This would be considered a breach of confidentiality unless there was consent from the patient (mature minor) or the patient's legal guardian. If the police contact the physician, information should be provided only with the consent of the patient or the patient's legal guardian, or with a court order.
The advice provided
Based on the patient's behaviour, the physician believed his patient was being sexually abused, was in need of protection, and did not appear to have adequate parental supervision or support. The physician advisor from the CMPA reassured him that it is appropriate to contact the local child protection agency; however he did not have a duty to report the criminal offence to the police.
The bottom line
Because of the consequences of reporting or not reporting to a child protection agency, members should judiciously consider the specific requirements established under the relevant legislation. Members are encouraged to contact the CMPA for advice if they are uncertain of their reporting obligations arising from the age of consent for sexual activity.