Criminalized Queerness in the 1970s & 1980s, and the Interpretation of the Charter of Rights and Freedoms (part 2)

Lizzie Tough

This is the second part of the blog series Decriminalizing Queerness and will focus on the police and criminal justice system response after the decriminalizing process for consensual sexual relations began in 1969.

Introduction

This blog will discuss the continuing criminality of queerness in Canada during the 1970s and 1980s, with 1987 signaling a further change in criminal law in Canada. The first part of this blog will focus on the ongoing struggles and harms experienced by queer individuals at the hands of players in the criminal justice system.[1] This includes the lingering biases in the courts and how perceptions of queerness as a sexually deviant trait impacted court decisions.  It is necessary to discuss police harm to queer communities, most notably the raids of queer-safe spaces.[2] Finally, the socioeconomic impacts of being queer before and after the HIV/AIDS outbreak began are imperative to understanding the level of victimization experienced by queer communities during the 1980s and how this was compounded by presumptions of sexual deviancy in the criminal justice system.[3] The second part of this blog will discuss how early judicial interpretation of the Charter of Rights and Freedoms (the “Charter”) improved access to justice for queer individuals and communities and led to novel decisions on queer rights that continue to have merit in Canadian criminal law to this day.[4] Decisions on 2SLGBTQIA+ rights under the Supreme Court of Canada (the “SCC”), as they relate to the Charter, exemplifies the trend of slow progression towards decriminalizing queerness and court support of queer liberation. This is important to discuss at this stage because these decisions shaped the judicial expectations regarding how the government and Canadian society ought to respect queer identities.[5]

Continuing Criminality of Homosexuality in Canada in the 1970s and 1980s

In the 1970s and 1980s, “Queer Liberation” movements and community organizations began to establish themselves in an effort to create safe spaces, networks, and advocacy for queer communities.[6] Although the decriminalization of all consensual adult sexual relations over the age of 21 occurred in 1969, there were still biases strongly present in the judicial system.[7] For instance, bias against queer parents going through family courts for a child custody arrangement could be subjected to judicial bias that queerness is somehow dangerous or a perversion, furthering the discrimination against queer identities in the courts.[8] Concurrently, police were actively marginalizing queer individuals, communities, and safe spaces.[9]

To do this, police continued to use gross indecency and sodomy laws to target queerness even though Parliament had very publicly decriminalized consensual queer sexual relations for two consenting adults.[10] Police perversion of gross indecency laws to continue the harassment of queer persons was often the first interaction that a queer person would have with the criminal justice system.[11] In Toronto, police were open about their homophobia and racism on the force, suggesting that it was somehow justified by police culture and public safety.[12] This exemplifies how heterosexual masculinity is fragile in police culture, and had resulted in harm to queer individuals and communities.[13] It is also concerning that police officers, who are most often the first point of interaction for a person navigating the criminal justice system, attempted to justify their discriminatory attitudes and behaviours when its impact on the lives of racialized and queer communities has caused significant harm that is felt intergenerationally.[14] It was not until 1987 that Parliament changed the gross indecency and sodomy provisions in the Criminal Code in a way that prevented police officers from using such charges for the purpose of harassing queer individuals, communities, and safe spaces.[15] Although this has not ended police harassment of queer individuals, it signals a further change in Canadian law that supports the decriminalization of queerness.

For queer individuals and communities, interactions with the police were unjustly hostile.[16] For many, there was still a strong sense that discretion was paramount to avoid police harassment, social alienation, loss of employment, loss of housing, and many other potential losses that could ultimately cause a significant negative impact on a queer person’s life.[17] Despite the ongoing safety concerns for queer communities in the 1970s, community resilience continued and shaped many of the queer networks and safe spaces in existence today.[18] In judicial systems, some courts were more sympathetic to queer persons.[19] On the other hand, others went with the “I’m not homophobic, but” route to conditionally allow a queer individual a limited version of freedoms they would otherwise have unconditionally but for their queer identity.[20] For example, a custodial hearing involving a queer parent could result in a court condition that a child may only reside with the queer parent if that parent remained celibate unless mpermitted  by the courts to be sexually active or involved in their queer community.[21] These distinguishments made outside of the criminal courts are important to consider because they exemplifyhow perceived criminality of queerness by the judiciary impacted the family and social dynamics in the lives of 2SLGBTQIA+ individuals.[22]

Although slow progress in the decriminalizing of queerness was made since 1969, this was nearly entirely derailed by the emergence of HIV/AIDS as a global health crisis.[23]

Fear of the unknown placed the blame for the outbreak of AIDS on gay and bisexual men.[24] However, this instead put these men at the greatest risk of contracting AIDS as homophobia was slowing much-needed progress in medical research on HIV and AIDS.[25] In Canada, tens of thousands of queer individuals were disproportionately affected by HIV and AIDS due to the stigmatization of queerness as sexually deviant.[26] To this day, there are still social perceptions that a queer HIV-positive individual will definitively cause harm if they do not live a celibate life.[27] This is simply false. Medical advancements in the knowledge of and treatment for HIV have allowed individuals living with HIV to have safe sexual relations with other individuals who do not have HIV.[28] The advancements in knowledge, treatment, and prevention of HIV are important for the general public and actors in the criminal justice system to be educated on because they further destigmatize queerness and perceptions of criminality with respect to sexual harm.[29] This is of key importance because it substantiates the argument that the criminal justice system imposed further presumptions of sexual deviancy on queer individuals who are HIV positive.[30]

Although the judiciary has been inconsistent in how queerness was perceived by the courts in the 1970s and 1980s, there are strong indications that change was happening in the courts.[31] However, this has been significantly affected by reactionary police actions and attitudes towards queer communities and their safe spaces.[32] Further adverse effects of decriminalizing queerness came to fruition with the outbreak of HIV/AIDS in Canada and the United States during this time.[33] It should be noted that, at the same time that HIV/AIDS was critically impacting queer communities, the Charter came into force in Canada, signaling an opportunity to challenge heteronormativity in policing and the courts.[34]

The Impacts of the Charter of Rights and Freedoms on Criminalized Homosexuality

The Charter is often viewed as a significant advancement in rights in Canada, and its inclusion in our Constitution was in part influenced by the success of the Bill of Rights in United States law.[35] In the mid-to-late 1980s, appellant courts heard a variety of arguments for the rights of queer individuals with reference to several sections of the Charter that were argued as relevant to the cases at hand. The reason why queer individuals had to put forth novel arguments in the court is because the Charter does not have an explicit section that lists queerness as a protected identity.[36] It ought to be noted that, although the framers left section 15(1) of the Charter open to interpretation for “analogous grounds,” it was deliberate that sexual diversity was not included.[37] This exclusion is important because it exemplifies that, although Parliament had begun to decriminalize queerness in Canada, the federal government was not willing to explicitly extend rights to queer individuals.[38] As the courts carved out the interpretation and method of analysis of section 15(1), appellant courts began to define the protection of queer identities in Canada.[39] Prior to section 15(1)’s interpretation as inclusive of queer identities, other sections of the Charter were interpreted as they relate to protecting queerness. However, this was relatively unsuccessful during the 1980s.

For example, in Sylvestre, the Federal Court of Appeal held that a queer soldier who is released from the Canadian Armed Forces due to their queer identity could not be protected under section 7 of the Charter.[40] By the 1990s, the SCC made advancements in the interpretation of section 15(1) that were inclusive of queer identities.[41] Similarly, in Douglas, the Federal Court’s interpretation of section 15(1) advanced the arguments for substantive equality for queer soldiers who were released from their position because of their queerness.[42] This is often referred to as “the rainbow purge,” which also included discrimination against queer police officers and federal employees who were fired because of their queerness.[43] While the SCC’s interpretation of the Charter for the purpose of protecting queer rights has had tremendous impacts on affirming queer identity as a normal part of Canadian society, the judiciary process to define analogous rights is slower than explicit substantive constitutional rights for queer individuals.[44]

Conclusion

The 1970s and 1980s are marked by slow progress in the decriminalization of queerness in Canada.[45] Biases that queerness is a sexually deviant behaviour lingered in the courts and were weaponized by the police to target queer individuals, communities, and safe spaces.[46] This was compounded by the HIV/AIDS crisis that emerged during this period, critically impacting queer individuals.[47] Although the Charter of Rights and Freedoms provided a method of affirming queer rights, its interpretation by the courts to protect queer rights was a slow process.[48] This part of Canadian legal history is important to remember because of the ongoing disregard for transgender rights including the rights of transgender youth.[49] Similarly, the ongoing distrust of the police and the criminal justice system in Canada by some queer individuals can be justified by past and current experiences with officers who fail to uphold the rights of queer individuals who they are interacting with.[50] It is important to educate actors of the criminal justice system on the difference between queer identities and sexual deviancy in an era of recurring harms and criminalization of identities in Canada.[51] Otherwise, the administration of justice in Canada risks being held in disrepute.

[1] Tom Warner, Never Going Back: A History of Queer Activism in Canada (Toronto: University of Toronto Press, 2002) at 101, online (ebook): <ebscohost.com> [permalink unavailable] [Queer Activism in Canada].

[2] Emma K Russell, Queer Histories and the Politics of Policing (London: Routledge, 2019) at 2, online (ebook) <taylorfrancis.com> [permalink unavailable] [Queer Histories and Policing]. See also Amanda Cash, The Criminalization of 2SLGBTQIA+ Canadians (Halifax: Coverdale Justice Society, 2023) at 16, online (pdf): <coverdale.ca> [https://perma.cc/XVS6-HPQB] [Criminalization of 2SLGBTQIA+ Canadians].

[3] Austin Grabish, “‘A True Hero’ Doctor Who Worked Through AIDS Crisis Retiring After Remarkable Career” CBC News (n.d.), online: <cbc.ca> [https://perma.cc/H7CF-284P] [Dr. Smith’s Account of the AIDS Crisis].

[4] Queer Histories and Policing, supra note 2 at 150.

[5] Ibid; Sylvestre v R (FCA), 1986 CanLII 6868 (FCA); Egan v Canada, 1995 CanLII 98 (SCC).

[6] See Ron Levy, “The 1969 Amendment and the (De)criminalization of Homosexuality” in The Canadian Encyclopedia (Historica Canada, 26 November 2019) online: <thecanadianencyclopedia.ca> [https://perma.cc/2PC6-ZGQG] [(De)criminalization of Homosexuality].

[7] Queer Activism in Canada, supra note 1 at 101.

[8] Ibid.

[9] Ibid at 103; Queer Histories and Policing, supra note 2 at 130. See also Leyland Cocco, “Activist on Declining Toronto Police Apology for 1981 Bathhouse Raids” The Globe and Mail (24 June 2016) online: <theglobeandmail.com> [https://perma.cc/7T75-46HT] [Declining Toronto Police Apology].

[10] Ibid; (De)criminalization of Homosexuality, supra note 6. See also Criminalization of 2SLGBTQIA+ Canadians, supra note 2 at 15.

[11] Queer Activism in Canada, supra note 1 at 100. See also Jason Pierceson, Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada, in the series “Queer Politics, Queer Theories”, ed by Craig A Rimmerman (Philadelphia: Temple University Press, 2005) at 172 [Courts, Liberalism, and Rights].

[12] Queer Activism in Canada, supra note 1 at 103.

[13] Ibid.

[14] Ibid. See generally Criminalization of 2SLGBTQIA+ Canadians, supra note 2.

[15] (De)criminalization of Homosexuality, supra note 6. See also An Act to amend the Criminal Code and the Canada Evidence Act, SC 1987, c 24, s 3.

[16] Ibid.

[17] Queer Activism in Canada, supra note 1 at 100. See generally (De)criminalization of Homosexuality, supra note 6.

[18] Dr. Smith’s Account of the AIDS Crisis, supra note 3.

[19] Queer Activism in Canada, supra note 1 at 102.

[20] Ibid at 103.

[21] Ibid at 102.

[22] Ibid.

[23] Dr. Smith’s Account of the AIDS Crisis, supra note 3. See also GLAAD, 2023 State of HIV Stigma (Los Angeles: GLAAD, 2023) at 2, online (pdf): <glad.org> [https://perma.cc/ZWL8-JP6K] [State of HIV Stigma].

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] State of HIV Stigma, supra note 23 at 2.

[29] Mona Loutfy et al, “Canadian Consensus Statement on HIV and Its Transmission in the Context of Criminal Law”, (2014) 25:3 Can J Infectious Diseases and Medical Microbiology 135, online (pdf): <nih.gov> [https://perma.cc/4AGG-DDVF] [HIV Transmission in Criminal Law Context].

[30] Ibid.

[31] Queer Activism in Canada, supra note 1 at 100.

[32] Queer Histories and Policing, supra note 2 at 130.

[33] Queer Activism in Canada, supra note 1 at 249.

[34] Ibid at 192.

[35] Courts, Liberalism, and Rights, supra note 11 at 172.

[36] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982 c 11.

[37] Courts, Liberalism, and Rights, supra note 11 at 172.

[38] Ibid.

[39] Queer Activism in Canada, supra, note 1 at 192.

[40] Sylvestre, supra note 5 at 54.

[41] Courts, Liberalism, and Rights, supra note 11 at 175.

[42] Douglas v Canada, 1992 CanLII 2419 (FC) at 272.

[43] Ibid. For more information on the “Rainbow Purge,” see generally, Ross, Roy & Satalic v The Queen [Settlement Agreement], (2020) Canada T-370-17 (FC).

[44] Courts, Liberalism, and Rights, supra note 11 at 172.

[45] Queer Activism in Canada, supra note 1 at 100.

[46] Queer Histories and Policing, supra note 2 at 2.

[47] Ibid at 249; Dr. Smith’s Account of the AIDS Crisis, supra note 3.

[48] Courts, Liberalism, and Rights, supra note 11 at 172.

[49] Jeremy Simes, “Dozens of Sask Teachers Sign Petition Calling for Schools to Not Follow Province’s Pronoun Law” CBC News (12 November 2023) online: <cbc.ca> [https://perma.cc/3L8W-H3LV]. See also David Prisciak, “School Divisions Will Be Responsible For Punishing Teachers Who Don’t Follow Pronoun Policy, Sask Premier Says” CTV News Regina (15 November 2023) <ctvnews.ca> [https://perma.cc/5426-EPGF].

[50] Queer Activism in Canada, supra, note 1 at 100. See generally Criminalization of 2SLGBTQIA+ Canadians, supra note 3; (De)criminalization of Homosexuality, supra note 6.

[51] Ibid.