- G. Lowis (law student)
Modern Canada doesn't give a damn what consenting men do – nor should the Criminal Code
Reader warning: Piece contains sex-based profanities.
The studio website Men of Montreal is a fairly standard homosexual adult website. It features attractive young men in a variety of bedrooms, living rooms, and shower rooms, with occasional views of the cities and countryside of Quebec, performing acts punishable by ten years in jail.
There is of course no reason for the models and producers to worry. A law in place is not necessarily a law enforced, and in this case, the law has been found unconstitutional by provincial courts in Quebec (and other Provinces). It is currently inconceivable to think of a court enforcing it. It is however officially still in place in Canadian law, and its validity has not been challenged in some Provinces or by the Supreme Court.
Canada is famously LGBTQ+ friendly. Halpern v Canada resulted in Ontario becoming the first jurisdiction in North America to have equal marriage in 2003, 1 and Prime Minister Justin Trudeau has marched at Pride parades from Halifax to Vancouver.2 Any gay history of Canada would say that homosexuality was decriminalized in 1969 – certainly, this is what the Government would like to proclaim.3 This was accomplished, however, in an unusual manner – instead of decriminalizing an act, or addressing issues around orientation, an exemption was created. Anal intercourse was still a crime, but this crime would no longer apply to either a husband and wife, or any two people over legal age.4 At the time, this was section 149A, and it survives now as section 159(2) of the Criminal Code.
In terms of private relationships, section 159(2) does what it needs to. It isn't elegant, but male homosexual couples (and heterosexual couples) can engage in anal sex without legal consequences.
Subsection 3, however, theoretically creates problems for pornographers, or even couples who wish to bring in a new partner and participate in a threesome. Subsection 2 explicitly states it must be performed “in private” between “any two persons”.5 Subsection 3 clarifies: “an act shall be deemed not to have been engaged in private if it is engaged in a public place or if more than two persons take part or are present”.6 By the text, Eric and Luc can legally fuck; Eric, Luc, and Alexandre can not, nor can Eric and Luc if Alexandre is filming, photographing, or merely standing in the background masturbating. At that point, the exemption created by Section (2) disappears, and the full weight of 159 re-emerges: “Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years”.7
It is tempting to say that this problem is a non-issue. Modern society has no more (indeed, likely rather less) problem with threesomes than it does with people wearing furry costumes.
More than that, the section has been declared unconstitutional by courts in half of Canada, including first Ontario,8 and then Quebec.9 This is not, however, a reason to declare victory and move on. The law remains on the statute books; for many Canadians those verdicts of unconstitutionality are only legally persuasive rather than binding, and in the declared cases, the reason for the quashing was the age of participants (who could consent to vaginal intercourse at 14), rather than the number present. The only reason those courts were even challenged with the issue was that the Crown was using the section to prosecute – the same philosophical Crown which proudly decriminalized consenting relations in 1969.
Random, senseless, and ridiculous pieces of legislation litter the history of any country with more than a century of independence – there are websites and books dedicated to the topic. But some are more offensive, and dangerous, than others. As things stand, in parts of Canada a conservative cop or prosecutor can threaten three horny consenting college students for having a spit-roast, even if they would be sure to win a claim of unconstitutionality. A homophobe could entirely accurately say that homosexual acts are forbidden by law, sitting in the Criminal Code right next to bestiality (Section 160). This should not be acceptable in a modern Canada.
The presence of the clause also demonstrates hypocrisy and past wounds in the implementation of foreign policy. Canada had an honourable response to the 2014 Ugandan law deepening sanctions for homosexuality and homosexual acts. While many European countries cut foreign aid in response, Canada went further and actively funded grass roots organizations opposing the passage of the law. There is a tension to this so long as Uganda's legislators can point to Canada's own Criminal Code. The provisions are nowhere near as harsh, and thanks to the courts they are vanishingly unlikely to be enforced, but they shouldn't be there at all.
This stain has, however, been noticed by some Members of Parliament. Bill C-32 was introduced in November 2016, which would, among other things, repeal S159 in its entirety. The Trudeau government has an eye on past wrongs, and has apologized for such evils as the Residential Schools system, and to gay government employees who were historically discriminated against. With that sense of historic justice, correcting a current wrong, where the laws designed to regulate morality tell consenting Canadians that they should be in jail, is a no brainer. Sadly, C-32 has been stalled for over a year; it has yet to receive a second reading, let alone move towards passing the House for consideration by the Senate. Perhaps it isn't a surprise that this bill isn't a priority. It is after all predominantly (even if importantly) symbolic, and there is no obvious rash of attractive young men being charged with double penetration. But they could be. And for all the speed with which society moved from opprobrium to approval for LGBTQ+ rights, it can always move back. History is replete with rights being won and lost, and the rise of populist demagoguery on both sides of the Atlantic is something to which we shouldn't assume Canada is immune. We should be updating the statute books to reflect modern morality while we have time and public opinion of that view. Modern Canadian society doesn't really give a damn what consenting men get up to in Montreal – and the Criminal Code shouldn't either.
1 Halpern v Canada, 65 O.R. (3d) 161,  O.J. No. 2268.
2 Derek Bedry, “Why Justin Trudeau skipped Vancouver’s Pride parade” The Daily Xtra, August 7 2017, online: <https://www.dailyxtra.com/why-justin-trudeau-skipped-vancouvers-pride-parade-77493>.
3 "Government of Canada initiatives to support LGBTQ2 communities and promote diversity and inclusion", Office of the Prime Minister, November 28 2017, online: <https://pm.gc.ca/eng/news/2017/11/28/government-canada-initiatives-support-lgbtq2-communities-and-promote-diversity-and>.
4 THE CRIMINAL LAW AMENDMENT ACT 1968—69 (CANADA), Jay C. Prober, The British Journal of Criminology, Vol. 10, No. 2 (APRIL 1970), pp. 180-183 at 180.
5 Criminal Code, RSC 1985 S159(2)(b).
6 Ibid S159(3)(a).
7 Ibid S159(1).
8 R v M(C) 98 CCC (3d) 481,  OJ No 1432 (QL).
9 R v Roy, 161 DLR (4th) 148,  RJQ 1043.
10 "Canada funding opponents of 'abhorrent' anti-gay bill in Uganda", National Post (March 6 2013), online: <nationalpost.com/news/canada/canada-funding-opponents-of-abhorrent-anti-gay-bill-in-uganda>.
11 Bill C-32, An Act related to the repeal of section 159 of the Criminal Code, 1st Sess, 42nd Parl, 2016.
12 Sue Bailey, the Canadian Press, "A long wait ends: Trudeau apologizes to N.L. residential school students", The Province (November 23, 2017), online: <www.theprovince.com/news/national/trudeau+offer+long+awaited+apology/15887944/story.html>.
13 "Trudeau is apologizing to LGBT civil servants: Here's why", CBC News (November 28 2017), online: <www.cbc.ca/news/politics/trudeau-apology-lgbt-civil-servants-military-fired-discrimination-1.4421601>.