Opinion
8 min

From anal sex to sorcery

Relics in Canada's Criminal Code are still being used in strange and 'shifting' ways

Credit: ThinkStock

How we should long for the heady days of the Law Commission of Canada.

Maybe then we could have gay threesomes without fear.

The otherwise innocuous-sounding body was a short-lived review process for tinkering with Canada’s aging network of intersecting, contradicting and, often, woefully outdated legal system. Jean Chrétien’s government set it up in 1997, and it enjoyed some popularity for proposing creative alternatives to Canada’s current laws, on everything from crime and punishment to electoral reform.

But the Harper government used its first year in power to axe the $3.4 million body.

So Canada is now left with myriad obsolete, anachronistic, dramatically redefined, discriminatory and unconstitutional laws. Some statutes establish a discriminatory age of consent for gay Canadians. Others ban gay threesomes. Still others impose a moral blanket on all theatrical performances.

The sex laws

In an annual report for the Law Commission that was published before its demise, the group said it planned to spend 2008 focusing on “age and law” and all the provisions relating to how Canadian law treats different generations differently.

Perfect, as Canada’s Criminal Code currently stipulates that 16-year-olds are mature enough to have vaginal sex, but they must wait another two years if they plan on having anal.

The differential age of consent in Canada dates back to Trudeau’s iconic 1968 shove against the government’s prying hands in the bedrooms of the nation. “The Beast of Sodom,” as Catholic newspaper Vers Demain called him then, legalized anal sex for all Canadians at least 21 years old — a far cry from the heterosexual age of consent, which was then 14. It was, nevertheless, a fiercely contentious issue.

The Mulroney government knocked that age down to 18 in 1988, refusing to go lower, seemingly out of a fear that it could advance AIDS amongst teens.

Brenda Cossman is a professor and the director of the Mark S Bonham Centre for Sexual Diversity Studies at the University of Toronto. She calls Trudeau’s decriminalization effort a “stepping stone that got stuck.” Cossman wrote on the differential age of consent for Xtra in 2000.

"Trudeau’s revolution remains unfinished,” she wrote. “The state should have no place in the consensual sex lives of the nation — no place in the bathhouses, the sex clubs, the strip bars or private homes where folks sell sex. If it’s consensual, it should be legal.

"It’s stunning that after 33 years, we are still fighting to finish what Pierre Trudeau started.” It’s now been nearly a half-century, and virtually nothing has changed.

And what about the threesomes?

Since 1970, Section 159 of the Criminal Code has legalized anal sex for two consenting adults, so long as it’s in private. It goes on: “an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present."

Don’t put that videocamera down quite yet. From the mid-1990s to the early 2000s, judges in three provinces ruled that the differential age of consent is unconstitutional, as it discriminates both on the basis of age and sexual orientation. The jury is still out as to whether those judges properly struck down the provisions on threesomes, but there appear to be no Crown prosecutors in Canada crazy enough to try to enforce that provision.

Like the New Democrats have done thrice before in the House of Commons, Toronto-Danforth MP Craig Scott has introduced a private member’s bill to strike down Section 159. “The bottom line here is that ridiculousness should know a limit,” he says.

He’s been reaching out to the government for more than six months but says he has received a “cold shoulder” from erstwhile justice minister Rob Nicholson. “He’s refused to discuss it with me."

He notes that the government has effectively conceded that the section is fundamentally unconstitutional — it refused to intervene in a case in British Columbia that eventually struck it down as being discriminatory.

He says that although it may be flatly unconstitutional in three provinces, cops in one of the other provinces could still try to press charges under Section 159. The law was last used in 2005, to charge a Quebec man who was up on other domestic assault charges against his common-law wife. The court went forward with the charges without realizing that they had been declared unconstitutional in Quebec seven years prior.

Perhaps even more dangerously, Scott notes, cops could use the threat of charges as an “upfront, non-prosecutorial approach” to intimidate or cajole gay suspects who may not know that the provision is unconstitutional.

He also notes the negative effects that the law could have on those who only read the law and don’t know its legal history — like teachers — and the aura of stigmatization that the provision can have.

But he is cautiously optimistic that the new justice minister, Peter MacKay, might take the initiative to remedy the discriminatory provision. Scott sent the neophyte a briefing note and a letter last month to run down the situation.

"I’m getting a bit impatient,” he says.

"This is a combination of Kafka and the Marx Brothers."

A spokesperson for MacKay wouldn’t comment.

The obscenity laws

While Canada’s sex laws may be on the outs, the country’s age-old obscenity laws appear to be entering a bit of a renaissance.

Section 163 of the Criminal Code tackles Offences Tending to Corrupt Morals — nowadays, they’re generally just referred to as obscenity laws.

Xtra has written about the newfound love of Section 163 to go after social deviants.

The origins of the laws listed in that section are steeped in 19th-century English Puritanism but were drawn up properly in the post-war period to tackle the evils of violent comic books. As authors Dennis Baker and Benjamin Janzen point out, writing for the Macdonald-Laurier Institute, the law makes “the sale of virtually every issue of Batman or Spiderman a criminal offence in Canada.” The duo’s paper advocates for an overhaul of our Criminal Code.

Banning violent comic books and anal sex are not the only hangovers from Canada’s Victorian heyday of moralism.

Sections 163 through 172 of the Criminal Code criminalize a wide array of activities that might otherwise be considered freedom of expression.

One provision of the law makes it illegal to market any drugs as a “method for restoring sexual virility,” in effect giving Ottawa the power to fine Viagra and its corporate overlords if they dare advertise what their product actually does.

Section 168 makes the mailing of obscene material illegal — Luka Magnotta was charged with that section, after allegedly using Canada Post to ship body parts across the country. Section 174 threatens with a fine anyone who is “nude and exposed to public view while on private property, whether or not the property is his own."

If the real implications of the outdated obscenity provisions are not evidence enough of a need to clean up Canada’s Criminal Code, there are many others that should be.

Section 365 bans pretending to practise witchcraft and telling fortunes. Section 228 makes legal killing someone — so long as you only do it with your mind. (Yes, really.)

One of the best example of criminal relics in our Criminal Code can be found in Section 71, entitled simply “Duels.” It makes punishable “every one who: challenges or attempts by any means to provoke another person to fight a duel; attempts to provoke a person to challenge another person to fight a duel; or accepts a challenge to fight a duel.” They could face up to two years in prison.

And these are not just wacky laws that make their way into dollar-bin joke books — bylaws like those in Glace Bay, Nova Scotia, where all cyclists are required to carry a kerosene lantern. Many of these dated laws have been appropriated to tackle the great evils of Canadian society, like strippers, for instance.

Section 167 has the power to punish, with a jail time of up to two years, any person involved “in an immoral, indecent or obscene performance, entertainment or representation in a theatre.” This includes everyone from the actors and the stagehands to the owner of the theatre. That provision is usually used to prosecute men who get too friendly with erotic dancers, or vice versa. The charge tends to pop up whenever sex toys (props, in essence) are used in the performance — one Ontario man was charged with running a strip club where he instituted a “dildo dance” performance. A judge found him guilty in 1997 and sentenced him to 18 months probation and slapped him with a $2,500 fine. An appeal court later upheld the conviction.

That’s a classic case of “judicial gymnastics,” Cossman says. “Law is not supposed to have a shifting purpose."

The government simply makes the case that they haven’t changed the intent of the law and that arresting overly friendly exotic dancers is well within the scope of legislation designed to clamp down on outlandish theatrical performances.

Cossman says it’s an example of the government “trying to drag the law into the 20th, or even the 21st century."

The political will

This reporter wrote over the past couple of weeks about levels of harassment faced at the Canadian border, and elsewhere, because of Canada’s antiquated laws on sex and gender.

Basil Papademos was stopped, harassed and had his property confiscated because he dared carry around photos of his travels to Thailand, where he hung around in, as he calls them, ladyboy bars.

Julian faced the ornery wrath of a group of American border guards who were confused by his trans status and used a flimsy pretext, found within his diary, to ban him from Canada’s southern neighbour.

Mark Marek and Rémy Couture both faced the long arm of the law after using the internet to diffuse images that made the squeamish amongst us uncomfortable.

None of the four did anything, strictly speaking, illegal. And there appears to be a relative consensus that the laws used to charge them should be in the history books, not the Criminal Code — that was the prevailing opinion, anyway, up until the government needed to slap the law on a few social deviants.

The NDP may have set a course for axing the differential age of consent, but Scott’s one-man fight doesn’t seem to be producing any results. While the party nominally supports the idea of the Law Commission of Canada, and certainly opposed its closure, they haven’t made mention of the once-lauded board in years. Montreal Liberal MP Irwin Cotler still trumpets the commission’s cause from time to time, needling the government for choking the life out of its power to self-reflect.

Xtra reached out to the office of new Minister of Justice Peter MacKay. A spokesperson said that the decision to enforce these laws is a matter left to the provinces. They would say that “our Government believes freedom of expression is a basic tenet of our constitution and must be protected."

The spokesperson highlighted the Harper government’s repealing of Section 13 of the Human Rights Act, which made illegal online hate speech. “By repealing this limit, free speech will now be protected for generations to come,” the spokesperson told Xtra. “We believe the Criminal Code, with its inherent legal protections, is a far more appropriate venue to prosecute hate speech offences.”

This journalist did not ask about the Human Rights Act, and MacKay’s spokesperson would not elaborate when pushed.

So, despite the fresh face in the Justice Department, it doesn’t appear as though there will be any movement.

Cossman can’t blame MacKay, really.

"You don’t get any points for doing this sort of thing,” she says. “It’s not a sexy enough issue."

Even with the inherent sexiness of gay threesomes, Viagra and violent comic books, Cossman makes the point that it’s not especially popular amongst Harper’s — or, really, anyone’s — base to trumpet an anti-moralistic agenda.

So, barring a gutsy politician or the return of the Law Commission, you’d better be discreet about your threesomes.