16 or 18: An Age-of-Consent Conflict of Laws
When two countries disagree on the age of consent, which one decides whether an applicant is inadmissible to Canada?
We did not witness how this story began, but its beginning was entirely ordinary: a woman with permanent resident status in Canada set out to sponsor her husband. In sponsorship applications, one of the most important conditions is the genuineness of the relationship – a factor examined under a microscope to weed out marriages of convenience entered into solely to obtain permanent residence.
As part of that examination, the husband was invited to an interview at the visa office in the country where he was then living.
The interview covered a great deal of ground: when and under what circumstances he had met his future wife, how the relationship had developed, how the wedding was organized, who attended, and much more.
Understanding what was at stake and eager to prove the relationship was real, the husband volunteered that their intimate relationship went back a long way – to 2019. That single fact became the source of all the difficulties that followed soon after.
The Age of Consent
Some time after the interview, the applicant and his representative requested the GCMS notes to find out how the case was progressing. What they found was unwelcome.
The age of consent in the applicant's country of residence is 18. In 2019, his future wife was only 16. An intimate relationship with a person of that age is a criminal offence there – and that, in turn, rendered the applicant inadmissible to Canada.
As soon as the scale of the emerging problem became clear, the case came to us; a swift and well-considered solution was needed. But as luck would have it, at that very moment the refusal arrived, for exactly the reason described above.
Does an Offence Affect Entry to Canada?
Criminal inadmissibility is a concept defined in Canada's immigration legislation.
If an applicant who intends to enter Canada – including by obtaining permanent residence – has previously committed an offence, that offence must be assessed in the context of Canadian law.
Depending on the penalty the equivalent offence would carry in Canada, the so-called Canadian equivalent, the visa office decides whether the applicant may enter the country or will be found inadmissible.
On its face, this seems simple and clear: take the offence, imagine it had been committed in Canada, find the penalty the law prescribes, and conclude whether the offender is inadmissible.
More on how criminal records affect entry to Canada
What the Law Leaves Unsaid
But this case turns on one important question to which the legislation simply provides no answer. It is one of those situations of which one might fairly say that it is impossible to foresee absolutely everything.
There is an obvious ambiguity here, and one reading or the other completely changes the picture – like a sentence whose entire meaning turns on where you place a single comma.
The key context is this: in the country where the applicant lives, the age of consent is 18. In Canada, the age of consent is lower – 16.
Under the laws of that country, intimacy at 16 is a crime, even when fully consensual. Under the laws of Canada, consensual intimacy at 16 is not a crime at all.
This produces two entirely different ways to identify the Canadian equivalent:
- In the first reading, the Canadian equivalent is entering into an intimate relationship abroad with a person who is below the age of consent under the laws of that country. On this view, an offence is plainly made out.
- In the second reading, the Canadian equivalent is entering into an intimate relationship abroad with a person who has reached the age of consent set out in Canadian law. On this view, there is no offence at all.
Which of these scenarios should govern the assessment? The law does not answer the question. On the one hand, everything happened in another country, so that country's legislation must be taken into account. On the other hand, the assessment is supposed to rest on the Canadian equivalent – which means Canadian legislation must be taken into account instead.
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Federal Court: Round One
In issuing the refusal, the immigration officer never acknowledged this ambiguity. The decision gave no insight into how the officer had resolved the dilemma – and that alone was enough to challenge it in court.
On top of that, several other deficiencies were identified in the officer's decision, and these too were put to use in preparing the court application.
The proceeding ended in a pre-trial settlement: the visa office agreed to set aside the refusal and reopen the application for reconsideration.
Federal Court: Round Two, and the Finale
A voluntary set-aside by the visa office does not automatically amount to an admission that the decision was wrong, and it certainly does not guarantee that the application will be approved.
In this case, the pre-trial settlement was followed by a second refusal. It was more detailed than the first – but, as often happens, it was precisely in the details that fresh grounds to challenge it were found.
For instance, the immigration officer relied on the Child's Rights Act but overlooked the fact that, in the applicant's country, this law had not been adopted in every part of the country and was applied inconsistently.
The officer also failed to address an entire set of important arguments that had been advanced in the applicant's defence after the first round in Federal Court – as though they had never been raised at all.
Once again, this was enough to build a persuasive case and contest the refusal.
This time the visa office adopted a wait-and-see posture, and the next move belonged to the court. It could simply decline to grant leave to hear the application, in which case the matter would have been resolved in IRCC's favour.
That did not happen. The court requested the entire file from the visa office for review – an unmistakable sign that it intended to consider the case on its merits.
Some time later, the court scheduled an in-person hearing on the merits. Only then did the visa office agree to set aside the refusal, rather than let the matter reach a hearing.
At that point it could fairly be said that the case had ended successfully – no further refusals followed, and the applicant went on to complete the immigration process.
Timeline
The full arc of the case, from the original application to final approval, spanned four years:
- June 2022 – permanent residence application filed
- June 2023 – interview at the visa office
- February 2024 – GCMS notes obtained and refusal received
- May 2024 – first round in Federal Court begins
- June 2024 – pre-trial settlement following the first round
- January 2025 – second refusal issued
- March 2025 – second round in Federal Court begins
- October 2025 – the court requests the full case file
- November 2025 – pre-trial settlement following the second round
- January 2026 – scheduled hearing date
- June 2026 – immigration application approved
Lawpoint Immigration specializes in criminal inadmissibility and spousal sponsorship matters, and represents clients before the Federal Court of Canada. When a case hinges on a gap or an ambiguity in the law, the way that uncertainty is framed and argued can decide the outcome. If you are dealing with an inadmissibility finding or a refused sponsorship, we can assess your situation and chart a path forward.