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Gender + Sexuality

Time to End Criminal Code’s State-Sanctioned Homophobia

Unconstitutional anal sex law used to oppress and persecute gays for almost 50 years.

Craig Scott 6 Dec

Craig Scott is a law professor at Osgoode Hall Law School of York University and former NDP Member of Parliament for Toronto-Danforth.

We should all welcome the federal government’s introduction of Bill C-32, which seeks to repeal Section 159 of Canada’s Criminal Code.

Section 159 criminalizes anal intercourse, providing for imprisonment of up to 10 years.

While Section 159 provides exceptions to this criminalization, they only serve to emphasize the section’s discriminatory, homophobic nature.

The first exception is that consenting adults can engage in anal intercourse, but “adult” is defined as age 18 and up — whereas the age of consent for all other (read heterosexual) sexual activity is 16.

Secondly, even if the sex is consensual and adult (as in involving people 18-plus), it is still criminal if more than two people are present. Once three people are together in a bedroom, anal intercourse — but no other form of sex — becomes “public.”

Thirdly — and a final sign that Kafka’s ghost was involved in drafting Section 159 — ‘underage’ anal sex is just fine as long as the people involved are “husband and wife.”

Section 159 traces its roots back to the enactment of its predecessor provision in 1969, when longstanding anti-sodomy crimes were ‘modernized’ by specifically referring to “anal intercourse” and by setting the age of consent at 21 (from the previous criminalization of all anal sex, regardless of age).

This change came two years after one of the most famous political phrases of the last half-century was uttered by then-justice minister Pierre Trudeau, who commented in 1967 that “there’s no place for the state in the bedrooms of the nation.”

Despite this bit of rhetoric, Section 159 and its predecessors were used after 1969 to threaten with charges, charge, prosecute and, sometimes, convict many hundreds, if not thousands, of gay men. And, except in some jurisdictions where the police are specifically told not to use it (as I have been told was the case in Toronto under former chief Bill Blair), it continues to be used to this day to harass and threaten.

Indeed, Justice Minister Wilson-Raybould revealed the shocking fact that there were no fewer than 70 charges under Section 159 in 2014 alone. That none appear to have resulted in convictions only serves to underline that Section 159 is still being used as a tool to persecute gay men.

So it is that Pierre Trudeau’s statement, even if charitably treated as aspirational when uttered in 1967, misrepresented the truth once it took on a new life as the oft-repeated summary of the “decriminalization” reforms that passed Parliament in 1969. Indeed, this false message of full decriminalization has been propagated for almost 50 years by Liberal politicians, eager as they have been to misleadingly claim the mantle of champions of LGBTQ rights.

Almost a half-century later, I am hopeful C-32 can be passed swiftly.

One reason for hope is that it appears Conservative justice critic Rob Nicholson — a former minister of justice — understands this as a rule of law issue and is advocating support for the bill.

As well he should, since it was Nicholson’s successor as justice minister, fellow Conservative Peter MacKay, who was the first justice minister to state officially that Section 159 is “unconstitutional and, accordingly… of no force and effect."

MacKay made the statement in a letter to me when I was a Member of Parliament. MacKay wrote in response to my efforts to convince first Nicholson, and later MacKay, to introduce government legislation to repeal Section 159, using my own private member’s bill, Bill C-448, as the impetus.

Bill C-448 was the fourth time an NDP MP had introduced a bill to repeal Section 159, dating back to Joe Comartin’s C-438 tabled in May 2007.

The fact that a Conservative justice minister has already accepted the premise of current Justice Minister Jody Wilson-Raybould that Section 159 is contrary to the Charter of Rights will hopefully help convince certain behind-the-times Conservative MPs to recognize this is not a bill they should oppose.

Conservative MPs might also be keener to support Bill C-32 if a little more humility were shown by the Liberal government, instead of tending to treat removal of this bigoted, unconstitutional provision from our statute books as a moment for congratulations.

In fact, the government should emphasize that it is making amends for the shameful legacy of 47 years of state sanctioning of homophobia.

They are also making amends for 20 years of shameful refusal by consecutive Liberal and Conservative governments to implement court rulings in five provinces that, starting in 1995, ruled Section 159 was unconstitutional. By 2003, the courts of appeal of Canada’s three largest provinces — Ontario, Quebec and British Columbia — had ruled Section 159 breached the equality rights of the Charter, and yet no government ever sought to repeal it, until now.

Let us now put this part of our ugly past behind us.

I hope Canadian society takes its cue from these two successive justice ministers — Conservative MacKay and Liberal Wilson-Raybould.

It is time to finally end this ongoing travesty for human dignity and to stop making a farce of the rule of law in Canada.

Repeal section 159.  [Tyee]

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