10 min

Sex crimes

With a Conservative government, are the scales of justice tipping?

Xtra's cover model, Monica Forrester, as Lady Justice. Credit: N Maxwell Lander

Lesbian pornographer Susie Bright spoke without notes, off the cuff, pacing the stage of a lecture hall tucked into the basement of a staid, stone building at the University of Toronto.

The ostensible subject was Bright’s recently released memoir, Big Sex Little Death, and her life as a pioneering publisher of the US porn magazine On Our Backs. Just three days earlier, a little further south on University Ave, the Ontario Court of Appeal had released a ruling on the constitutionality of three of Canada’s more perverse sex laws. The Bedford ruling had found prohibitions on bawdyhouses and living off the avails of prostitution unconstitutional but upheld the prohibition on communicating for the purpose of prostitution.

Bright couldn’t resist. How could she? She applauded the decision while acknowledging its limits. She lauded Canada generally — the land of gay marriage and relaxed drug laws — for its sexual freedom.

And while sexual freedom is important in its own right — as in, why should the government tell people what to do with their bodies? — Bright also said it’s a proxy for other kinds of freedoms. If you want to see how seriously a country takes its civil liberties, look no further than its sex laws. When there’s a clampdown on sex, it’s usually a portent of other bad things to come.

Later, in an interview with Xtra, Bright elaborated.

“It’s the first thing to go,” she says. “If you took the whole world, and looked at their legal and public policy and compared them to the general state of democracy in the nation, you would notice that how draconian the society is correlates with the amount of freedom they have to conduct their sexual lives how they want.”

Sex, harm & Canadian courts

“There’s no doubt that we are in an arena of flux right now when it comes to sexual freedom,” says Micheal Vonn, policy director at the BC Civil Liberties Association.

Legal and political battles over sex work, polygamy, HIV nondisclosure and abortion could redraw the boundaries of our sexual lives. Meanwhile, our privacy is under attack, Vonn says, making our private sexual lives more open to government scrutiny than ever before.

Canada’s polygamy law illustrates the point. The law is part of a suite of antiquated sex laws — like bans on immoral theatrical performances and sending scurrilous material through the mails. These laws are rarely used. In the case of poly-gamy, there hasn’t been a prosecution in 60 years.

But the law has received renewed interest from the BC attorney general over the past five years, as pressure mounts on the government to arrest the polygamous men of Bountiful, BC. The problem is, the law is so broad that gay people in open marriages or straight people who have mistresses could ostensibly be caught. The attorney general asked the BC Supreme Court to rule on its constitutionality.

Justice Robert Bauman’s 300-page decision shows Canada on the razor’s edge. The courts face a tough choice: should they uphold these old, morality-based laws, or should they employ a more secular analysis?

Over the past 20 years, the courts have increasingly turned away from what they call the “community standards test,” a kind of public — read Christian — morality and toward what they call the “harm” test, says Kevin Kindred, a lawyer in Halifax and a volunteer with the Nova Scotia Rainbow Action Project. The Supreme Court used this model to analyze cases that challenge everything from marijuana to corporal punishment of children.

The results have been mixed. Especially when sexual freedom is at stake, the courts have shown themselves reluctant to strike down laws outright.

Still, at times, courts have criticized the method of their enforcement. For instance, in a challenge to importation bans on SM porn, border guards were chastised for singling out and confiscating gay erotica destined for Little Sister’s bookstore in Vancouver. At other times, they have upheld the challenged law, while redefining its scope, as was the case in the Montreal swingers’ club ruling in 2005.

“In the swingers’ club ruling, it became very clear — and there’s a clear dissent — that any law that regulates people’s sexual liberties, it has to be based on harm,” Kindred says. “That’s progress. But there are a lot of different ways of looking at harm. There’s a whole lot of subjectivity built into it.”

Because there are many ways to interpret “harm,” courts have a lot of leeway in ruling on sex laws. Courts have found leather and kink harmful to women. They’ve found public performances of sexuality potentially dangerous to children. And in so doing, they’ve upheld laws enacted out of Victorian moralism as being, essentially, good for us.

The polygamy decision follows that trend.

“It was painted as a terrific victory for polyamory, since it carved out an exemption for polyamory. However, if you look at the whole decision, it’s far from clear that they are exempted,” Vonn says.

“Even if you agree with the ultimate outcome of the polygamy reference — and reasonable people can disagree about it — the logic of the decision is troubling,” Vonn says. “The court looked at problems with the law and said, ‘That’s okay because we’re protecting the Western idea of monogamous marriage.’”

All of that will weigh heavily on the Supreme Court as it considers prostitution. In April, the federal government announced it is appealing the Bedford case to the Supreme Court of Canada. We’re at least a year away from resolution from the Supreme Court. Another challenge to the sex laws — a BC case — could also play a role.

The Bedford case also underscores the limits of winning change from the courts, according to Patrizia Gentile, a Carleton University professor and co-author of The Canadian War on Queers: National Security as Sexual Regulation. After all, Bedford decriminalizes sex work for those who can afford to work from hotels or from home. The law most often used to target street-level sex workers — communicating for the purpose of prostitution — was upheld.

“When we have human rights successes, or what are perceived as human rights successes, what we often don’t realize is that it only affects sectors of our communities,” Gentile says.

And that means that lower-income queer, trans and minority sex workers will continue to face the brunt of enforcement — which is already the case. The failures of the missing women’s inquiry, with its focus on street-level sex work and indigenous women, underscore this point.

Another contentious case — called Mabior, which asked the court to reconsider prosecutions for partners who don’t disclose their HIV status before having sex — was argued before the Supreme Court in February. A decision is due in the next few months. It will likely address whether HIV-positive people who use condoms or who have low viral loads are required to disclose their health statuses to partners. If they don’t disclose, they could face serious assault charges, some of which carry maximum sentences of life in prison.

The court could go either way. But its decisions on HIV nondisclosure and sex work — as well as an inevitable, eventual challenge to Canada’s polygamy law at the Supreme Court — could prove a tipping point. Will Canadian courts reject sex laws unless they cause demonstrable harm, or will they find backdoor ways to uphold the old moral code?

Harper’s war on sex

Meanwhile, over the past five years, Parliament has had a constant diet of new sex laws to consider. Indeed, Prime Minister Stephen Harper delights in teasing voters with new and stronger forms of sexual regulation, if only as a way to torment the opposition.

Lest we forget, when Harper was elected prime minister in 2006, he faced seemingly insurmountable challenges. Chief among them was the reality of a minority Parliament. He was forced to either cooperate with the Liberals or browbeat them into submission. He was also confronted by his socially conservative base. Their desires clashed with middle-of-the-road voters, who feared another culture war and who were so important to a future majority victory. And finally, Harper had to contend with his own undisciplined and shallow caucus, many of whom were agitating on divisive issues such as gay marriage and abortion.

Drafting new sex laws solved all these problems. After all, with new “protections” always a few votes away, opposition could be framed as sympathy for the perverts. Meanwhile, his socially conservative base — and caucus — could be rewarded in a way that middle-of-the-road voters could tolerate (and would ultimately reward). Moreover, unlike NDP and Liberal platform planks such as childcare or the Kelowna Accord, which cost money, passing new criminal laws doesn’t affect the budget bottom line, at least not immediately.

It’s just one symptom of a hyper-partisan Parliament, says Casey Oraa, political action director for Queer Ontario, and it’s not going away.

First, Harper raised the age of consent, from 14 to 16, over the objection of youth groups, Planned Parenthood and CLGRO, the predecessor to Queer Ontario. Age of consent was renamed “age of protection.”

It was followed by a barrage of anti-immigration bills: two anti-stripper bills (2008’s C-17 and 2009’s C-45) were introduced but floundered; however another bill, framed as the cure for human trafficking, passed later that year.

The Conservatives followed up with the measures that ultimately formed the backbone of C-10, the omnibus crime bill. It imposes new mandatory minimum sentences for some sex crimes and makes it harder for those convicted to have their records suspended.

“It comes from a socially conservative angle,” Oraa says. “They use marginalized groups, groups on the fringes, as scapegoats. It’s typical.”

In April, Conservative MP Joy Smith successfully navigated a private member’s bill through the House of Commons that would add sex trafficking to the list of extra-territorial offences that Canadian police can investigate abroad. Police — whose budgets are already stretched thin — were given no extra resources to conduct such investigations, so the bill may have more to do with optics than justice.

And it’s optics — symbolic politics, according to Oraa — that are driving another private member’s bill. In May, Parliament had the first hour of debate on Conservative Stephen Woodworth’s private member’s bill that calls for a special committee to discuss when life begins. An incremental approach to reopening the abortion debate was also put forward by Conservative Ken Epp in 2009, when he proposed that killing a fetus should be a distinct crime from killing a pregnant woman.

“Religious lobby groups are being heard and are being invited to the table,” Gentile says. “There has been a real mobility of the religious right in a way that we can’t ignore.”

Politicians, hemmed in by partisan politics, a squeamish electorate and socially conservative lobbyists, can turn too easily to sexual regulation as an easy win.

“It’s such an easy, infantile distraction,” Bright says. “They may have terrible economic practices, they may be facing corruption charges, there may be problems with the justice system, but just start shouting about children watching something shocking on television — it’s very juicy.”

Strains of resistance

But not always. The Conservative government, long accustomed to justifying its agenda as a war on perverts, in February tried to frame debate on an internet surveillance bill in similar terms.

Public Safety Minister Vic Toews, in response to a question from Liberal Francis Scarpaleggia about the lawful access bill, retorted that the MP could “either stand with us or with the child pornographers.”

An odd thing happened. Political commentators, opposition politicians and the public didn’t buy it. Instead, Toews was chastised for going too far — for trying to stifle debate with childish name-calling.

“Happily, people went nuts,” says Vonn. “They said, ‘We’re not going to take that label.’”

Lorne Gunter wrote in the National Post that Toews “confirmed civil libertarians’ fears” about lawful access. Andrew Coyne referred to the “general climate of hysteria” in Ottawa. In an unsigned editorial, the Calgary Herald described Toew’s comments as “absurd, insulting and offensive.” The Vancouver Province declared itself “disgusted” with the bill.

For the first time in recent memory, Canadians refused to accept a sex-panic narrative to justify an intrusion into civil liberties.

Taking the temperature of the nation

Legal analysis of sexual freedom takes you only so far. One can be free to engage in sex but still remain inhibited — because of social codes or other societal pressures.

“I don’t want to overemphasize the effect of the state and the law in the way people live their lives,” Kindred says.

Oraa and Gentile agree. Education, popular media, policing and the intersection of sexuality with gender identity, race and income all have a huge effect on how free people are to express their sexuality.

Moreover, even during crackdowns on sexuality — when the morality-based laws are strictly enforced — people find ways to resist, Gentile says.

“Our communities are really resilient. No matter how disciplinary or regulatory things get in the legal or social context, our communities are really resilient. We will always find pockets — or larger projects — where we can empower ourselves. Our communities constantly resist,” she says.

So what about Bright’s invocation of sexual liberties as the canary in the coal mine? For Kindred, the litmus test is not sexual regulation, but whether or not there is active opposition to it.

“The level to which a society is prepared to resist the regulation of sexual liberties is a good barometer for the sophistication of the civil liberties cultures generally,” Kindred says.

If so, the country’s reaction to the internet surveillance bill may be a good sign, Vonn points out.

“It’s really about dusting off our hands and saying, ‘We have work to do,’” Vonn says. “We have serious work to do.”

Bathhouses, bars & the law

Gay bars and bathhouses have been the frequent targets of police raids. The Bedford decision declared the bawdyhouse law unconstitutional, which further weakens the provisions used to prosecute staff and customers of bathhouses and makes future raids less likely. In April, the federal government announced it would appeal the ruling to the Supreme Court of Canada.


Four women at Toronto’s Brunswick Tavern sing “I Enjoy Being a Dyke.” Police are called and the women are charged with obstruction of justice.

Police raid Montreal’s Sauna Aquarius, charging 36 patrons under the bawdyhouse law.

Montreal’s Club Baths and Neptune are raided. Police take the Neptune’s 7,000-name membership list.

A Montreal gay bar, Truxxx, is raided. Nearly 150 people are arrested and subjected to mandatory testing for sexually transmitted diseases. The next night, 2,000 Montrealers take to the streets in a noisy, tense protest.

Police raid the Barracks in Toronto, arresting 28. In the wake of the raid, the Right to Privacy Committee is established to fight the charges.

Police raid the Hot Tub Club in Toronto’s fledgling gaybourhood.

Police raid four Toronto bathhouses in one night, arresting more than 250 men as found-ins at a bawdyhouse. Gays riot, igniting the political consciousness of Toronto’s gay community.

Police raid Remington’s, a Toronto strip club, to stop Sperm Attack Mondays, an evening in which the dancers jack off on stage.

Police arrest 19 men at the Bijou, a Toronto porn bar. They are charged with committing indecent acts because of the bar’s glory holes.

Nine male police officers raid a women’s bathhouse event. They lay charges for liquor licence violations. The organizers, a feminist collective, fight the charges and win.

Police in Calgary raid Goliath’s, a bathhouse, and charge owners, managers and staff with keeping a common bawdyhouse.

An investigation sparked by a post on a gay cruising website leads Hamilton police to raid the Warehouse Spa and arrest two patrons.