2 min

Anal sex law challenged

'The Criminal Code is being used to harass people'

CHILLING EFFECT. David Corbett says Parliament should adjust the law. Credit: Paula Wilson

Could sodomy change the relationship between Parliament and the courts in this country?

The lawyer in the case of an Ontario man arrested for anal sex with a minor says it just might.

When 52 Division Toronto police officers arrested Julio Cesar Lucas in the early morning of Jun 24, 1998, they charged him with anal intercourse with a person under the age of 18 – a crime spelled out in section 159 of Canada’s Criminal Code and punishable with up to 10 years in jail.

Lucas spent a night in Don jail and was also charged with administering drugs or alcohol for the purpose of illicit sex. Three months later, both charges were dropped.

The problem was that the Ontario Court Of Appeal had struck down section 159 as unconstitutional in 1995 in a case known as R Versus Carmen M. The court said the law discriminates against gay men.

Though still published in the Criminal Code, section 159 has no effect in Ontario. The Federal Court and courts in Quebec and British Columbia have also suggested section 159 is unconstitutional, but no case has reached the Supreme Court yet.

Lucas’s lawyer, David Corbett, says Parliament should be pushed to change the Criminal Code to match the case law – within a reasonable period of time. Such a ruling would redefine its relationship with the courts.

“I was the lawyer in Carmen M and it pisses me off when three years later, some poor guy is arrested under that law,” says Corbett. “We believe this part of the Criminal Code is repugnant to gay men. Having it on the books creates a chilling effect and it allows the police to pick people up and arrest them because they don’t like them. The Criminal Code is being used to harass people.”

Lucas is suing the Toronto Police Service, the province of Ontario and the feds for the public embarrassment of being arrested. (Corbett says he’s asking for more than $100,000 in compensation, but says the sum is irrelevant since he won’t get near that much.) The first two suits are on hold until the courts decide if Lucas is even allowed to sue the feds.

That issue is the biggie because when courts knock down laws, there is currently no mechanism to make sure these changes are passed by legislatures and respected by police.

“Parliament has done nothing in the six year since the law was struck down,” says Corbett. “But the courts have never said what must be done if something is struck down.”

In the case of abortion, for example, prohibition is still in the code but it’s never enforced. On non-code issues, there is more flexibility. In the 1999 case of M Versus H – on the issue of whether a lesbian had to support her ex after a separation – the Supreme Court gave Ontario six weeks to change its laws regarding same-sex couples; the province took only three weeks to pass its omnibus bill.

Corbett doesn’t expect the courts will ever be able to force Parliament to bring its laws up to date. But it might be able “to provide compensation for people who are hurt because the law wasn’t changed.”

So far, Lucas’s suit has had mixed results. He won his first case, but lost his most recent at the Ontario Superior Court Of Justice Jun 14. He’s now seeking an appeal from the Ontario Court Of Appeal; Corbett expects that case to be heard in 2002.