Canada
4 min

The land of wait and see

What's the Criminal Code doing in bed with you?

Jack Layton, the new leader of the federal New Democratic Party, knew men who committed suicide after the police raided Toronto bathhouses in 1981. He admits he’s surprised that more than 20 years later, the Criminal Code Of Canada still allows police to arrest and humiliate people for consensual sex acts behind closed doors.

“I don’t want to say I have a detailed knowledge of what is prohibited and what is not – which is a testimony to my attitude,” says Layton. “I really think consensual sexual relations between adults is their own business. And if there’s work to be done because of antiquated laws on the books, then we need to have a look taken at them.”

When it comes to laws against activities like sex involving more than two people, sex in a place of business, sex in parks at night or a sexual show, progressive politicians often find themselves tempering their criticisms of the status quo with disclaimers. Sexual freedoms have not been at the top of their to-do lists.

The position of Sheila Copps, federal heritage minister and token Liberal leadership candidate, is typical.

“I would certainly be willing to look at how to modernize the approach we take to the law enforcement of activities that are generally consensual,” says Copps. “I don’t think I can say, ‘Yes, I’ll change it tomorrow.’ But I think there are a fair number of laws on the books that are not enforced in a uniform way for a lot of different reasons. A lot of Canadians would take the view that when we have serious criminal issues that the police are engaged with, it’s important that we don’t use up the time of the law enforcement agencies in breaking up activities between consenting adults.”

Hedy Fry, Liberal MP for Vancouver Centre and Secretary Of State for multiculturalism and the status of women, says she would need to talk to the community, including lesbian and gay lawyers, before taking up the issue. For example, though she does agree with legalizing sexual activity in situations where participants have created the condition of privacy, she has doubts about changing laws in a way that would allow people to have sex in parks at night. She points out that children’s exposure to sex and violence (though there are no laws to protect people from seeing violence) remains a concern.

“When you talk about one person’s freedom, you have to look at who else’s freedom you infringe on,” says Fry. “If people can, of their own free will, come to see something, then they should be able to see it. But if it’s in a public place, like a park, and if it’s open to children wandering in, I’m concerned. Perhaps if there’s clearly an entry gate, like at a drinking establishment.”

Last winter police raided Calgary’s only bathhouse, charging 13 patrons with being found in a common bawdy house – defined as any place where indecent acts or prostitution takes place – and charging the owners with operating a common bawdy house. Fry admits she hasn’t spent much time researching what happened in Calgary and how it happened.

“I’ve been fully engaged with gay marriage. That’s been top of my mind,” she says.

And it’s true that politicians have had many other things on their minds. In the 1980s, Svend Robinson, NDP MP for Burnaby-Douglas, regularly advocated against Canada’s bawdy-house laws – creating legal red-light districts was one of his trademark ideas – but he’s lately been occupied with the same-sex marriage issue, his own private member’s bill that would prohibit hate speech based on sexual orientation and his position as NDP foreign affairs critic. Canada’s first openly gay MP says the bawdy-house issue is still important to him and he’d be willing to introduce a bill some time in the future that would repeal many of Canada’s sex laws.

“I think we need to get the state and the police out of the consensual sex lives of Canadians,” says Robinson. “It’s not what Canadians think police should be doing.”

Parliament will be obliged to give at least a cursory look at the prostitution side of the bawdy- house laws soon. Ottawa Centre Liberal MP Mac Harb has introduced a private member’s bill that would legalize brothels if they were licensed by municipal authorities. The bill would leave the bawdy-house laws on the books – and it doesn’t address the non-commercial sexual activity that goes on in gay bathhouses – but it will at least get officials talking about sex laws. (Harb did not return Xtra’s calls by press time.) Openly gay Bloc Québécois MP Réal Ménard has also introduced a bill that would decriminalize prostitution.
Also working on the prostitution issue is Libby Davies, the NDP MP for Vancouver East. Prompted by the upcoming trial of Willy Pickton for the murder of 15 street-involved Vancouver women, Davies had a parliamentary motion approved to strike a sub-committee of the Justice Committee that would look at laws affecting the sex trade.

Though the terms of the sub-committee and its membership have not been settled, Davies expects that it will have public hearings which will make Canadians aware of the defects of Canada’s bawdy-house laws. (She says federal Justice Minister Martin Cauchon has told her he wants to review the Criminal Code; Cauchon’s office did not return Xtra’s telephone calls by press time.)

“The Criminal Code is part of what’s creating an increased risk for these women,” says Davies. “Clearly the focus is going to be on the sex trade. I’m certainly willing to look at things in a broader way. I don’t know if the other members of the committee will.” (Fry expects to be appointed chair of the committee and won’t answer questions on the issue to avoid pre-empting her role.)
Sex law reform remains a touchy topic for politicians and the people who feel the brunt of them. As Layton remembers from the 1981 bathhouse raids: The last thing people charged with sex offences want to do is go public. And there lies the rub.

“In politics you operate on what’s been brought to your attention by the people who are negatively affected by injustice,” says Layton. “To be truthful,I haven’t had these issues brought to my attention by those affected.