[Note: I had not intended to post this information on the website. There is research I still need to do. I realized many many months ago it won’t get done until the inquiry is finished. However I now believe (April 2008) for clarity’s sake there is a necessity to post some of this information.
There appears to be much confusion and misinformation at the inquiry over age of consent for acts deemed to be homosexual in nature in the 60s, 70s and 80s. The same held true for the Project Truth sex abuse trials. Indeed it was the latter which raised questions in my mind and eventually prompted me to start to research the issue.
So, I have taken the information I have on hand and put together this shell. Where I am unsure of dates or facts and need to do more research I will so indicate. If by chance I have opportunity to clarify those points over the next few months I will do so.
I will also provide these links to following articles/documents which provide further information:
(1) The relevant sections of the Criminal Code as it stood pre-1969;
(2) sexual offences in the Criminal Code in 2006;
(3) Excerpts from parliamentary debates prior to passage of the omnibus bill;
(4) “We Demand” (1971 – gay rights activists);
(5) “What we got: the Details: Criminal Code Reform” (1997- gay rights activists);
(6) Canada’s Legal Age of Consent to Sexual Activity (1999 – Parliamentary Research Bureau);
(7) Confusion over Age of Consent (2006 – REAL Women) and
(8) “The Gang of Five” (my comments re the omnibus bill and the Canadian bishops, specifically those who comprised the Gang of Five]
Prior to 1969 buggery was illegal in Canada, as were acts which were considered homosexual in nature such as those referred to as acts of “gross indecency.”
In 1969 then Prime Minister Pierre Elliott Trudeau pushed a massive omnibus Bill (C-150) through Parliament which forced a multitude of amendments to the 1954 Criminal Code of Canada (the Code). C-150 decriminalized buggery. (the same bill decriminalized abortion)
Liberal MPs were denied a free vote. The entire bill was literally rammed through parliament by the governing majority. The Roman Catholic Trudeau and his Roman Catholic Minister of Justice John Turner denied Liberal MP’s a free vote. The vote was whipped. Members of the governing party were forced to vote against their conscience. (As an interesting aside, the speaker of the house was Lucien Lamoureux, a Cornwall lawyer and Liberal who ran as an independent in the 1968 election in order to maintain his neutrality as speaker.)
Opposition to the decriminalization of buggery came from members of the Progressive Conservatives and the now defunct Quebec-based Ralliemont Creditistes. The debates raged with speaker after speaker expressing deep concerns as to where this would or might lead.
The concerns fell on deaf ears. Assurances were given that the move to decriminalize buggery in no way reflected approval of homosexual acts and that decriminalization referred only to those acts committed between two consenting adults, each of whom is twenty-one-years-of-age or over. The bill also broke ground by giving men permission to legally ‘bugger’ consenting wives.
Passage of Bill C-150 essentially gave birth to Canada’s “gay liberation” movement. In the summer of 1971 a group of gay rights activists gathered to mark the second anniversary of the legalisation of buggery, – not to celebrate, but to demand “true equality.”
In the 1919 Criminal Code of Canada buggery was defined as “carnal copulation against nature by human beings with each other or with a beast. There must be a penetration per anum.” Buggery, as is self-evident, referred to both the crime of buggery/sodomy and that of bestiality.
For many years the code stipulated that those found guilty of buggery were “liable to imprisonment for life.”
By the time the Code was revised in 1954 the potential for life imprisonment was reduced to “liable to imprisonment for fourteen years.”
The crime of “gross indecency” appeared in the 1919 Code under “Acts of Gross Indecency between male persons.” Section 206 of the 1919 code stated:
“Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person.”
The 1969 amendments to the Code ‘legalized’ sexual acts which were regarded as homosexual in nature (buggery, sodomy, bestiality, gross indecency), a fact recognized by the gay rights lobby.
Subsequently and until 1985 all acts of buggery and gross indecency were legal between consenting adults age 21 and over. In 1985 the age of consent for buggery was reduced to 18. It seems that also in 1985 gross indecency was removed from the Code.
The following shows the evolution of the law throughout the years. I have more data on hand to input here and more research to do but I think this is suffice to get an idea of what the law was and how it has evolved. I think it is at the least abundantly clear that before 1985 sodomy and acts of gross indecency were legal only when engaged in by consenting adults age 21 and over.
The various laws are colour coded according to the source and year of publication.
1919 from Criminal Code of Canada 1919
1935 Crankshaws Criminal Code of Canada
1959 Crankshaw’s Criminal Code (based upon the revised code of 1954. The next major revision of the Criminal Code came in 1969, after the Trudeau omnibus bill)
1970 Revised Statutes of Canada (The law after Trudeau’s omnibus bill)
I have not tried to incorporate the current statutes – there have been too many changes to do so with ease. Also note that in most instances the absence of an entry under a statute indicates that that particular statute has been repealed. That was one of a number of issues I had hoped to double check.]
1919 (Section 202): Everyone is guilty of an indictable offence and liable to imprisonment for life who commits buggery, either with a human being or with any other living creature.
[…buggery is the carnal copulation against nature by human beings with each other or with a beast. There must be a penetration per anum….A penetration of the mouth is not sodomy…but is punishable as an act of indecency. See Sec 206. Unlike rape, sodomy can be committed by two persons, both of whom consent, and even by a husband and wife….]
1935 (Section 202): Everyone is guilty of an indictable offence and liable to imprisonment for life who commits buggery, either with a human being or with any other living creature.
1959 (Section 147): Buggery or Bestiality. Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years
Assault with intent, Attempts. An assault with intent to commit buggery with another person is a separate offence under s. 148 of the Criminal Code and is punishable with ten years imprisonment and whipping.
1970 (Section 155): Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years. 1953-54, c. 51, s. 147. (see Exceptions re Act further down page)
[In 1983 the issue of twenty-one-year-old consenting adults received a liberalizing nudge from Robin Badgley who, in his report Sexual Offences Against Children, recommended a uniform age of consent of 18 for vaginal sex and sodomy, and one of age 16 for other types of sexual activity.
In 1991 Section 159 of the Code is “Anal Intercourse.” This section replaces the 1970 Section 155 on Buggery . When precisely the change in terminology transpired I am uncertain. I see in one article that it may have been wrought through the lobby and insistence of Canada’s first openly gay MP Svend Robinson.
In 1995 age of consent re “anal intercourse” (then age 18) was struck down by Ontario Court of Appeal as discrimination against homosexuals by violating the equality provisions of the Canadian Charter of Rights and Freedoms. Annotation in Martin’s Annual Criminal Code, 1997 notes court ruling “that this section discriminates on the basis of age contrary to s. 15 of the Charter” and says it is “therefore of no force and effect.” That reduced the age of consent for buggery to 14.
The offence of gross indecency was repealed in 1985.]
Attempt to Commit Buggery
1919 (Section 203): Everyone is guilty of an indictable offence and liable to ten years imprisonment who attempts to commit the offence mentioned in the preceding section
1935 (Section 203): Everyone is guilty of an indictable offence and liable to ten years imprisonment who attempts to commit the offence mentioned in the preceding section
1959 (under Section 147 – see above) Assault with intent, Attempts. An assault with intent to commit buggery with another person is a separate offence under s. 148 of the Criminal Code and is punishable with ten years imprisonment and whipping.
Indecent Assault on Male
1935 (Section 293) Everyone is guilty of an indictable offence and liable to ten years’ imprisonment, and to be whipped, who assaults any person with intent to commit sodomy or who, being male, indecently assaults another male person.
1959 (Section 148): Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is laible to imprisonment for ten years and to be whipped.
1970 (Section 156): Every male person who indecently assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped. 1953-54, c. 51, s. 148.
Acts of Gross Indecency between male persons
1919 (Section 206): Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person.
1959 (Section 149): Every one who commits an act of gross indecency with another person is guilty of an indictable offence and liable to imprisonment for five years. (This section is now referenced simply as Acts of Gross Indecency rather than Acts of Gross Indecency between male persons. The offence is no longer applicable to male/male only)
1970 (Section 157): Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years. 1953-54, c. 51, s. 149.
[Various sources indicate the offence was still in the Code until 1988. However the 1991 Tremeear’s Criminal Code indicates it was repealed in 1985.
I have a note that during a1982 trial it was ruled that “This offence does not require the participation of another person. Thus, the offence is made out by the act of the accused in masturbating in the presence of a young child R v. G (1982), 70 C.C.C. (2d) 24, 38 A.R. 48 (Q.B.)]
Exceptions re Acts in Private between husband and wife and consenting adults
(new to the code after Bill C-150 in 1969 with the decriminalization of buggery)
1970 (Section 158): Sections 155 and 157 do not apply to any act committed in private between
(a) a husband and wife
(b) any two persons, each of whom is twenty-one years or more of age, Both of whom consent to the commission of the act.
(2) For the purposes of subsection (1),
(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
(b) a person shall be deemed not to consent if to the commission of an act
(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or
(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that the person is feeble-minded, or insane, or an idiot or an imbecile. 1968-1969, c. 38, s. 7.
Incest: Research to do
Consent of child under fourteen no defence
1935 (Section 294) It is no defence to a charge or indictment for any indecent assault on a young person under the age of fourteen years to prove that he or she consented to the act of indecency.
1953-54 (Section 132): Where an accused is charged with an offence under section 138, 141 or 148 in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge.
1970 (Section 140) Where an accused is charged with an offence under section 146, 149 or 156 in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge. 1953-54, c. 51, s. 132.
1919 (Section 298): Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent presentations as to the nature and quality of the act.
2. No one under the age of fourteen years can commit this act.
1959 Commentary on Rape: “There is a difference between consent and submission: every consent involves a submission; but it by no means follows that a mere submission involves consent.”
[1982: “Rape” removed from Criminal Code – replaced with “sexual assault,” “sexual assault with a weapon” and “aggravated sexual assault.”]
Punishment for rape
1919 (Section 299): Every one who commits rape is guilty of indictable offence and liable to suffer death or to imprisonment for life.
1935 (Section 136): Everyone who commits rape is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
1953-54 (Section 139) (from the 1953-1954 statutes): No male person shall be deemed to commit an offence under section 136, 137, 138 or 142 while he is under the age of fourteen years.
Sentence of punishment by whipping
1935 (Section 1060) (1) Whenever whipping may be awarded for any offence, the Court may sentence the Offender to be once, twice or thrice whipped, within the limits of the prison, under the supervision of the medical officer of the prison, or if there be no such officer, or if the medical officer be for any reason unable to be present, then, under the supervision of a surgeon or physician to be named by the Minister of Justice in the case of prisons under the control of the Dominion, and in the case of other prisons by the Attorney General of the Province in which such prison is situated.
2. The number of strokes shall be specified in the sentence; and the instrument shall be a cat-o’-nine-tails unless some other instrument is specified in the sentence.
3. Whenever practicable, every whipping shall take place not less than ten days before the expiration of any term of imprisonment to which the offender is sentenced for the offence.
4. Whipping shall not be inflicted on any female.
1953-54 (Section 157): (1) Everyone who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of a child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and is liable to imprisonment for two years.
(2) No proceedings for this offence shall be commenced more than one year after the time when the offence was committed.
(3) For the purpose of this section, “child” means a person who is or appears to be under the age of eighteen.
(4) WHO MAY INSTITUTE PROSECUTIONS. No proceedings shall be commenced under subsection (1) without the consent of the Attorney General, unless they are institute by or at the insistence of a recognized society for the protection of children or by an officer of a juvenile court.