Among amendments to section 159 of the Canadian criminal code, sodomy and anal intercourse between consenting adults age eighteen and older were eliminated as criminal offenses.
In 1967, Pierre Trudeau introduced the sexual offenses reform bill,
However, this liberal recommendation was ineffectual and buried under many antigay and antilesbian provisions. Not only was the age of consent for gay sex twenty-one years of age, higher than for heterosexuals, but also the criminal code left many gay-oriented criminal offenses on the books. The code merely rearranged the offenses under the structure of “homosexual offences.” Offenses that remained on the books included buggery
In the early 1980’s, there had been an increase in social and political activism and in published articles calling for further amendments to the criminal code with regard to sexuality. The discourse indicated a concern over the language that addressed anal intercourse. Proponents of legal change demonstrated anger over unfair discrepancies in the age of consent between heterosexual and homosexual sex.
In 1985, Canada’s parliament prepared to adopt Bill C-15, which added further amendments to section 159. The amendments were adopted and went into effect on January 1, 1988. The age of consent was lowered from twenty-one years of age to fourteen years of age for most sexual acts in private by two unmarried persons. The old offenses of gross indecency and buggery were repealed. The bill, however, sent mixed messages to LGBT people. The age of consent for anal intercourse between unmarried persons remained eighteen. Those who perform anal sex with persons under age eighteen or in a public place would risk a possible ten-year prison sentence.
The new age of consent, particularly for same-gender sex, still roused fear among conservative members of Parliament. In the hopes of appeasing these fears and of strengthening the laws to protect children from abuse, a new law was introduced to accompany the lower age of consent. This new offense made punishable by up to five years in prison the act of obtaining or attempting to obtain sex with a minor in exchange for food, housing, clothing, money, drugs, or alcohol.
The decriminalization of adult consensual sex in Canada in 1988 furthered LGBT equality. Those portions of section 159 that were less than friendly to lesbians and gays motivated activists to continue fighting for full equality. One point of contention was the higher age of consent for anal intercourse. Activists worked tirelessly in the judicial system to challenge section 159.
In 1995, a Canadian federal court, in Halm v. Canada (Minister of Employment and Immigration),
Another case, R. v. M. (C.) (1995), concerning a heterosexual couple, was decided in the Ontario Court of Appeals. At trial, the judge decided that section 159 was contrary to section 7 of the charter and that it was discriminatory to prevent an accused from offering a defense of “consent” to acts of anal intercourse with a young person. According to the court, section 159 violated the charter’s equality rights guarantee when it discriminated based on sexual orientation (Justice Abella) and based on age (Justices Goodman and Catzman).
As a result of these cases and the hard work of activists, on March 1, 1995, section 159 of the criminal code was struck down.
In the late 1990’s and early twenty-first century, however, the tide turned regarding age of consent laws. Ironically, whereas LGBT activists fought in the 1970’s and 1980’s for the abolition of the age of consent, the fight in the early part of the twenty-first century has been more about opposing forces that want to raise it. A government announcement made in late 1999 had called for a review of the age of consent laws in the hopes of changing the age of consent for all sexual acts to sixteen or even eighteen. The discourse in support of the change cited the need to protect children from abuse.
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Lahey, Kathleen A. Are We “Persons” Yet? Law and Sexuality in Canada. Buffalo, N.Y.: University of Toronto Press, 1999. -
MacDougall, Bruce. Queer Judgements: Homosexuality, Expression, and the Courts in Canada. Buffalo, N.Y.: University of Toronto Press, 2000. -
McLeod, Donald W. Lesbian and Gay Liberation in Canada: A Selected Annotated Chronology, 1964-1975. Toronto, Ont.: ECW Press/Homewood Books, 1996. -
Smith, Miriam. Lesbian and Gay Rights in Canada: Social Movements and Equality Seeking, 1971-1999. Buffalo, N.Y.: University of Toronto Press, 1999. -
Warner, Tom. Never Going Back: A History of Queer Activism in Canada. Buffalo, N.Y.: University of Toronto Press, 2002.
May 6, 1868: Kertbeny Coins the Terms “Homosexual” and “Heterosexual”
1885: United Kingdom Criminalizes “Gross Indecency”
January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians
September 4, 1957: The Wolfenden Report Calls for Decriminalizing Private Consensual Sex
1961: Illinois Legalizes Consensual Homosexual Sex
January 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights
August, 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex
October 18, 1973: Lambda Legal Authorized to Practice Law
November 17, 1975: U.S. Supreme Court Rules in “Crimes Against Nature” Case
1986: Bowers v. Hardwick Upholds State Sodomy Laws
1992-2006: Indians Struggle to Abolish Sodomy Law
June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law