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BC still prosecuting anal sex

Government won't give the order to stop charging

BC?s government won't order the Crown to stop charging people with having consensual anal sex. Credit: David Hawe photo

Over the past four years I have written a number of articles and letters in this newspaper on the issue of prosecutions in British Columbia for the crime of anal intercourse.

I have tried to hold the NDP and then Liberal governments accountable for allowing those unjust prosecutions to continue under their watch and I have called on those governments to use their powers to put a stop to them.

In responding to those articles and letters, those governments claimed that they had already used their powers to put a stop to those prosecutions. They had not.

It is now time to hold them accountable for their failure to make sure that the information they provided was accurate.

Canada still has a law on its books that makes it a crime to have anal intercourse when one or both of the parties are under 18, unless they are married. The age of consent for vaginal or oral intercourse is 14. The law also makes it a crime to have anal intercourse if more then two persons are present.

One judge recently called sodomy laws “uncommonly silly.” They are far more then that.

By stigmatizing an intimate act that is closely associated with gay sex, the law stigmatizes gay men as criminal while providing no benefit to society.

Before a prosecutor can charge someone for an alleged crime, the prosecutor must decide that the prosecution is in the public interest.

Anal intercourse prosecutions are never in the public interest.

In the 1990s, the Ontario and Quebec courts of appeal found Canada’s anal intercourse law to be unconstitutional because it discriminated on the grounds of age, marital status and sexual orientation. Despite those decisions and the lack of any public interest in stigmatizing anal intercourse, prosecutors in British Columbia continued to prosecute for that crime.

I wanted to know why our provincial government would allow prosecutions under that unjust law and so, as a writer for this newspaper, I filed a freedom of information request.

Like the Wizard of Oz, the then-NDP government had no intention of allowing me to see behind the tightly closed curtain protecting their information. They vigorously fought my freedom of information request, even refusing to share with me some of the information they provided to British Columbia’s Information and Privacy Commissioner.

In winning that fight, they told the commissioner that there were two kinds of documents, Practice Directives and Practice Bulletins. Practice Directives were binding on prosecutors. Practice Bulletins were not.

Because their document about anal intercourse was a non-binding Practice Bulletin that contained legal advice, the government argued that the law did not require them to share that document with me.

In accepting the government’s argument, the commissioner found that the advice set out in the Practice Bulletin could be accepted or rejected by individual prosecutors when deciding whether or not to lay a charge for anal intercourse.

While it was my opinion that the NDP government was being unreasonably secretive in refusing to provide me a copy of that Practice Bulletin, I accepted the commissioner’s decision and I wrote my first article on this issue without that information. I called on the NDP government to use their power to put a stop to prosecutions for anal intercourse by issuing a binding directive.

The government did not take kindly to my article and responded with a defensive letter to the editor.

In that letter, the government stated that they had “directed” prosecutors not to prosecute for anal intercourse. That information was not accurate. They had only issued a non-binding Practice Bulletin and not a Practice Directive.

shortly after the government misinformed Xtra West readers about having “directed” prosecutors not to lay anal intercourse charges, a prosecutor did just that and even obtained a conviction.

That conviction was appealed on the ground that the anal intercourse law was unconstitutional. The prosecutor on that appeal agreed and our BC Court of Appeal acquitted the accused of the anal intercourse charge.

Shortly after that court decision, a prosecutor in British Columbia charged another person with anal intercourse.

This time, I wrote to our present Attorney General, Liberal MLA Geoff Plant, and requested he make sure that prosecutors no longer prosecute for anal intercourse by using his statutory powers to direct that prosecutors no longer lay such charges. If it happened once, it could happen again.

In responding to my request, Plant stated that the Criminal Justice Branch of his ministry already had a “prohibition” against prosecutions for anal intercourse.

I suspected that information was inaccurate, and the Criminal Justice Branch confirmed that they only have a non-binding Practice Bulletin on the issue.

A non-binding Practice Bulletin does not qualify as a prohibition and therefore the Attorney General was inaccurate when he stated that his government had a prohibition against such prosecutions. They do not.

The Attorney General also failed to meet his obligation to make sure that no further unjust prosecutions for anal intercourse take place in this province.

It would not have been difficult for the Attorney General to issue a binding directive that there were to be no more charges for anal intercourse. There was no political cost as the Court of Appeal had already taken the heat by declaring the law unconstitutional.

As a good journalist, I called the court registry to confirm that a prosecutor had in fact charged for anal intercourse after the law had been found to be unconstitutional in this province.

The court clerk was too embarrassed to even say the words anal intercourse, giving me instead the number of the section in the Criminal Code. The Attorney General in his letter to me did the same thing.

Whether out of embarrassment or an unacceptably defensive culture, the NDP and Liberal governments have not only refused to take any responsibility for failing to put a stop to those unjust prosecutions, they have also responded with inaccurate information.

We deserve better.