Criminalizing LGBT Communities in Canada: Now and Then (a student blog)

In the past twenty years or so, there have been huge strides in the acceptance of LGBT communities in Canada and a societal push to amend the out-dated laws that no longer reflect Canada’s diverse and increasingly inclusive society. However, there are still some crucial changes to be made.

The first major governmental change happened with the introduction of Bill C-150 under the Minister of Justice at the time, Pierre Elliot Trudeau. In 1969, The Criminal Law Amendment Act, 1968-69 became law and homosexuality officially became legalised. Trudeau Sr. was quoted when the bill was first introduced that Bill C-150 was "bringing the laws of the land up to contemporary society, I think. Take this thing on homosexuality, I think the view we take here is that there's no place for the state in the bedrooms of the nation”.1 May 2019 will be the 50th anniversary of the Act but is the state still intruding in the bedrooms of the nation?

If you’re a gay teen, the answer is currently yes. Recently, there have been several attempts with Bill C-32 (2016), Bill C-39 (2017) and with Bill C-75 (2018) to remove Section 159 from the Criminal Code but it is still in place. Section 159 reads as follows:

Anal Intercourse

159 (1) 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 or is guilty of an offence punishable on summary conviction.

Exception

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act.

Idem

(3) For the purposes of subsection (2),

(a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or

(ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.2

While this section prohibits anal intercourse for everyone under 18, it is important to understand that this will disproportionately affect those youth which were designated male at birth and who engage in sex with another partner who was also designated male at birth. Currently, the age of consent throughout Canada is 16 unless the other partner is in a position of power/trust and then it is 18.

This means that teens, if they are of different sex, may engage in sexual intercourse whereas male teens in same-sex relationships may be committing a sexual offence.

It’s important to understand the historical use of this section is widely recognized as having being used to target homosexual males.3 You might be thinking, “Surely this is unconstitutional!”. And you would be agreeing with several court of appeals throughout Canada but unfortunately no cases have been appealed up to the Supreme Court to deal with the issue. The Ontario Court of Appeal was one of the first to recognize the “disparate impact on homosexual males, because anal intercourse is a "basic form of sexual expression for gay men"”.4 But the law is technically still a part of the Criminal Code.

However, there has been some improvement. Bill C-66, the Expungement of Historically Unjust Convictions Act, was enacted in December 2017 and provides some recourse. This Bill allows for the expunging and deleting of three main types of convictions: gross indecency, buggery, anal intercourse or offences under the National Defence Act which would be from one of the three aforementioned offences.5 However, those arrested under bawdy house laws 6 currently have no recourse despite the testimony of queer historian Tom Hooper “that more than 1,300 men were arrested in bathhouse raids under the bawdy house charge between 1968 and 2004”.7

Now Bill C-75, which is currently making its way through Parliament would:

...remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.8

This would provide more protections and the potential for expungement of previous convictions not currently allowed in Bill C-66 but is still not a perfect solution.9

However, the bill is not passed yet and it is currently on its second reading. If it passes, it will be a good set forward to limiting the discrimination LGBT face because of outdated laws in the Criminal Code. If it doesn’t pass, which is what happened with the previous bills that attempted to address Section 159, then it’ll still be several more years of waiting.

Notes

1 CBC News “Same-sex rights: Canada Timeline”, CBC News (1 March 2007), online: <https://www.cbc.ca/news2/background/samesexrights/timeline_canada.html>

2 Criminal Code, RS 1985, c C-46, s 159.

3 Department of Justice “Questions and Answers – An Act related to the repeal of section 159 of the Criminal Code” (15 December 2016) < https://www.justice.gc.ca/eng/csj-sjc/pl/s159/qa_s159-qr_s159.html>.

4 Ibid.

5 Bill C-66, Expungement of Historically Unjust Convictions Act, 1st Sess, 42nd Parl, 2018, Schedule (assented to 21 June 2018).

6 See Section 210, 197, and 211 of the Criminal Code.

7 Rob Salerno “Queer activists disappointed by gay conviction expungement law”, Daily Xtra (17 May 2018) online: <https://www.dailyxtra.com/queer-activists-disappointed-by-gay-conviction-expungement-law-86564>.

8 Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018, Summary (second reading 2 November 2018).

9 Rob Salerno “Laws that affect LGBT people in Canada may soon be struck down. Other sections of the Criminal Code are still anti-queer,” Daily Xtra (29 October 2018) online: < https://www.dailyxtra.com/laws-that-affects-lgbt-people-in-canada-may-soon-be-struck-down-other-sections-of-the-criminal-code-are-still-anti-queer-123394>.