Canada Decriminalizes Sex Practices Between Consenting Adults Summary

  • Last updated on November 11, 2022

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.

Summary of Event

In 1967, Pierre Trudeau introduced the sexual offenses reform bill, Sexual offenses reform, Canada which, in 1969, amended Section 159 of the Canadian criminal code and decriminalized “private,” consensual same-gender sex, which had been articulated in law as “gross indecency” between adults. As a result, LGBT Canadians could acknowledge their sexuality without that sexuality being considered criminal behavior. [kw]Canada Decriminalizes Sex Practices Between Consenting Adults (Jan. 1, 1988) [kw]Decriminalizes Sex Practices Between Consenting Adults, Canada (Jan. 1, 1988) [kw]Sex Practices Between Consenting Adults, Canada Decriminalizes (Jan. 1, 1988) [kw]Consenting Adults, Canada Decriminalizes Sex Practices Between (Jan. 1, 1988) Canada;consensual sex legalized Sodomy laws;Canada [c]Civil rights;Jan. 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults[1820] [c]Laws, acts, and legal history;Jan. 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults[1820] [c]Government and politics;Jan. 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults[1820] Trudeau, Pierre Halm, Henry Catzman, Marvin Abella, Rosalie Silberman Goodman, Susanne R.

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 Buggery;and Canadian law[Canadian law] (a reference to anal intercourse), indecent assault on male by male or female by female, acts of “gross indecency” Indecency;and Canadian law[Canadian law] between men, procuring and attempts to procure acts of gross indecency between males, persistent solicitation, importuning of males by males for immoral purposes, and violations of indecency by-laws. In addition, the report and subsequent laws contained language criminalizing homosexuality in the military and prohibiting marriage between same-gender couples.

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.

Significance

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), Halm v. Canada (Minister of Employment and Immigration) (1995)[Halm v Canada] reviewed a deportation case involving a U.S. citizen who jumped bail after being convicted of sodomy and child endangerment in 1990. The court decided that Canadian law was contrary to section 159 of the country’s charter for two reasons: It had an adverse and disparate impact on homosexual men and it discriminated on the basis of age. One justice (the only woman) ruled that the law “arbitrarily disadvantages gay men by denying to them until they are eighteen a choice available at the age of fourteen to those who are not gay, namely, their choice of sexual expression with a consenting partner with whom they are not married.”

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. Canada;consensual sex legalized Sodomy laws;Canada

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Lahey, Kathleen A. Are We “Persons” Yet? Law and Sexuality in Canada. Buffalo, N.Y.: University of Toronto Press, 1999.
  • citation-type="booksimple"

    xlink:type="simple">MacDougall, Bruce. Queer Judgements: Homosexuality, Expression, and the Courts in Canada. Buffalo, N.Y.: University of Toronto Press, 2000.
  • citation-type="booksimple"

    xlink:type="simple">McLeod, Donald W. Lesbian and Gay Liberation in Canada: A Selected Annotated Chronology, 1964-1975. Toronto, Ont.: ECW Press/Homewood Books, 1996.
  • citation-type="booksimple"

    xlink:type="simple">Smith, Miriam. Lesbian and Gay Rights in Canada: Social Movements and Equality Seeking, 1971-1999. Buffalo, N.Y.: University of Toronto Press, 1999.
  • citation-type="booksimple"

    xlink:type="simple">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

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