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However, the Working Paper took a different view of the unlawful intercourse offence relating to those under 16.In addition to supporting the retention of a "total prohibition" of sexual intercourse with female persons under the age of 14, the Law Reform Commission expressed the view that intercourse between adults and young persons under 16 should continue to be prohibited by the criminal law.The exception, of course, is anal intercourse, to which unmarried persons under 18 cannot legally consent, although both the Ontario Court of Appeal(3) and the Quebec Court of Appeal(4) have struck down the relevant section of the Criminal Code.Prior to passage of Bill C-15, section 153(1) of the Criminal Code made it an indictable offence for any male person to have sexual intercourse with a female under 14 who was not his wife, whether or not he believed she was at least 14; the maximum penalty upon conviction was life imprisonment.Males under 14 were exempted from liability for this offence.Sections 151 and 152 now prohibit virtually all kinds of sexual contact with children under 14 and the defence of consent is unavailable for those offences as well as for any sexual assault offences in respect of both male and female victims under 14.
Also prior to Bill C-15, a male person who had sexual intercourse with a female not his wife who was over 14 but under 16, and "of previously chaste character," was guilty of an indictable offence, and liable to a maximum of five years imprisonment, whether or not he believed she was 16.
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The Criminal Code does not now criminalize consensual sexual activity with or between persons 14 or over, unless it takes place in a relationship of trust or dependency, in which case sexual activity with persons over 14 but under 18 can constitute an offence, notwithstanding their consent.
Even consensual activity with those under 14 but over 12 may not be an offence if the accused is under 16 and less than two years older than the complainant.
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The kind of scrutiny that a complainant might face in testing the proof of her chaste character no doubt also contributed to the fact that few charges were being laid under that provision prior to its repeal.