What we got: The details

Criminal Code reform [This document was compiled by members of the gay rights lobby. It outlines the gay lobby perception of what they got in response to “We Demand.”]Abbreviations in document:

  • CC: Criminal Code of Canada
  • CGRO: Coalition for Gay Right in Ontario
  • Charter: Canadian Charter of Rights and Freedoms
  • CLGRO: Coalition for Lesbian and Gay Rights in Ontario (previously CGRO)
  • CHRA: Canadian Human Rights Act
  • CHRC: Canadian Human Rights Commission
  • CSIS: Canadian Security Intelligence Service
  • DSO: Dangerous Sexual Offender
  • G&M: The Globe and Mail, Toronto
  • GATE: Gay Alliance Toward Equality
  • GO: Gays of Ottawa
  • LRCC: Law Reform Commission of Canada
  • McLeod: Don McLeod’s Lesbian and Gay Liberation in Canada, 1996
  • MP: Member of Parliament
  • NDP: New Democratic Party
  • NGRC: National Gay Right Coalition
  • PC: Progressive Conservative Party
  • RCMP: Royal Canadian Mounted Police
  • RTPC: Right to Privacy Committee
  • SIU: Special Investigations Unit, Canadian Armed Forces
  • TBP: The Body Politic

  • TBP May 74: Federal minister would drop laws. Solicitor general Warren Allmand in (undated) speech says acts classified as crimes because they offend moral standards of legislators should not be in CC. Story says “In March, the Law Reform Commission of Canada proposed that all but the most serious crimes be removed from the courts and put through a mediation process.” LRCC’s 27 Mar 74 report cited, among others, “homosexual offences, bestiality or exhibitionism.”


  • TBP Jun 76: ‘Peace and Security’ threatens gays. Notes proposed revision of “dangerous sexual offender” status to “dangerous offender” (conflating acts violent or sexual). LRCC reported to have “recently called for repeal of ‘dangerous sexual offender’ legislation.” DSO provision allowed incarceration for an indefinite period (often effectively for life).
  • TBP Aug 76: DSO laws: a call for abolition. Brief presented 12 May 76 by NGRC to Standing Committee on Justice and Legal Affairs, studying Bill C-83 (“Peace and Security”). Notes that “non-violent offences such as ‘gross indecency’ are included in the list of offences which can lead to” DSO classification, and that “‘gross indecency’ is used only in cases where there is no violence and both parties consent to the act.”


  • TBP Feb 79: Law commission calls for repeal of most “sexual offence” laws. In report released late Nov 78, LRCC calls for removal of CC sections on “gross indecency, indecent assault, rape, buggery and bestiality” and their replacement by only two offences: “sexual interference” (touching without consent) and “sexual aggression” (same, with violence or threat of violence). “As to age of consent,” story says, “the Commission’s position is not so clear. For heterosexual sex the age would continue to vary between 14 and 18. … For homosexual and lesbian sex, although the Commission does not expressly say so,” the effect of their proposals would be to lower the age to 18. Story ends by saying LRCC recommendations are usually ignored by the government.


  • TBP Sep 80: Source says federal legislation to OK group sex, gay sex at 18. Peter Maloney (member of Gay and Lesbian Liberals) tells TBP an unnamed official in the Department of Justice had said omnibus CC amendments, to be introduced soon, will lower the age of consent for homosexual acts to 18 and remove provision making sex among more than two persons illegal.


  • TBP Feb 81: Gay sex, orgies to be legal at 18 if Criminal Code changes pass. In “long-awaited response” to LRCC report of Nov 78, justice minister Jean Chrétien announced proposals, 19 Dec 80, not yet in form of a bill, to: reduce age of consent for homosexual acts from 21 to 18; abolish offences of buggery, rape, and indecent assault, replacing them with “sexual assault” and “aggravated sexual assault”; and allow sexual acts among more than two persons. “Gross indecency” to remain.

Proposal also includes — for the first time — a “kiddie porn” provision, making it a crime to involve anyone under 16 in “any sexually explicit conduct” for the purpose of producing a “visual representation” of it.

  • TBP May 81: Age-of-consent revisions to Code may get second reading soon. Chrétien’s omnibus CC reforms, now Bill C-53, expected to come to second reading by May, or by early fall. (Date of first reading — tabling of bill in Commons — not given; bills require three readings, approved by votes, to pass in Commons). Provisions much as noted in Feb 81 story above, with addition of “laddering” of age of consent: sex between a person under legal age and anyone within three years of that person’s age not to be illegal.
  • TBP May 81: DSO: facing an endless jail sentence. Story on George Milne, facing indeterminate sentence for “gross indecency” with men under 19; those who testified at his trial said they had consented.


  • TBP May 82: DO: Indefinite term for non-violent “crimes”. Large analysis piece, also based on case of George Milne. Proposed revision (see Jun 76) of term “dangerous sexual offender” to “dangerous offender” (DO) has apparently been adopted (though I did not find any record of the change). DO classification could still be applied after a single offence, without provision for trial by jury or appeal to a higher court, and was most often used against men who had sex with other males under the age of consent.
  • TBP Jun 82: The bawdyhouse battle: public vs private. RTPC (defending accused in Toronto bath raids) presents brief, 29 Apr 82, to Justice and Legal Affairs Committee studying Bill C-53 (see May 81), calling for repeal of bawdyhouse law. RTPC says vagueness of law has been used to criminalize acts between consenting adults in private. (CC Section 179 (now s. 197) defined a bawdyhouse as “a place that is kept or occupied, or resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency” (emphasis added).)
  • TBP Jul 82: Morality campaign stops Code changes. Justice minister Jean Chrétien, 15 Jun 82, withdraws amendments to CC “that would have legalized buggery, bestiality and sexual acts between more than two consenting adults.” Ottawa Citizen reported 19 Jun 82 that the government had received “hundred of petitions and thousands of letters” opposing the changes; said the 10,000-member US-based Family and Freedom Foundation, Niagara Falls (Ontario and New York), had been single greatest influence on the volume of mail.
  • TBP Sep 82: Passing “palatable” legislation. Bill C-127, created from the ashes of Bill C-53, passes Commons 4 Aug 82. “Rape” removed from CC, replaced with “sexual assault”, “sexual assault with a weapon” and “aggravated sexual assault.” “Kiddie porn” provisions shelved, as were most other proposed reforms. “Buggery” remained an offence, as did sex among more than two persons. The age of consent for homosexual acts remained 21.
  • TBP Oct 82: Justice minister says law reform on way. Jean Chrétien releases 123-page policy paper, 25 Aug 82, “to be used as a guideline for the Law Reform Commission of Canada.” Story says “paper states that only ‘serious crimes’ should be dealt with by the Criminal Code, that ‘less coercive or intrusive’ means should be used to prosecute victimless crimes, and that the criminal law should more clearly define offences and their penalties.” (Back to square one: see proposals from the Law Reform Commission, May 74, above.) “Chrétien says that one immediate need is to re- introduce legislation to deal with ‘child pornography.'”


  • TBP Jun 83: Criminal Code change promised once again. Justice minister Mark MacGuigan expected to introduce amendments to obscenity sections of CC in the fall. Story quotes Maude Barlow of Canadian Coalition Against Media Pornography on need for shift of emphasis from “morality and sexual explicitness to one dealing with the repression inherent in violent pornography.” No mention made of CC sexual offence provisions.

(We Demand in 1971 had not addressed obscenity provisions in the Criminal Code. But they would become a major battlefront, and would eventually affect aspects of age of consent. So I will continue to report stories here on obscenity sections of the Code.)

  • TBP Sep 83: Broader obscenity definition sought. MacGuigan introduces proposals, 30 Jun 83, to render obscene “any matter or thing” portraying the “undue exploitation of sex, violence, crime, horror, or cruelty through degrading representations of a male or female person.” Maude Barlow named special advisor to prime minister Trudeau, effective 12 Sep 83. Government sets up committee, under lawyer Paul Fraser, to study issues of pornography and prostitution, to report by 31 Dec 84.
  • TBP Dec 83: Legal restraints and better hopes. Special report on symposium, “Homosexuality and Justice”, Laval University, early autumn. Report notes that: “It may be possible under the Charter of Rights [to come into effect 17 Apr 85; see Federal human rights protection] to have gross indecency ruled unconstitutional. The offence’s vagueness may not conform with the article of the Charter which states, ‘Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence.”


  • TBP Jan 85: Taking advantage of abuse. Feature-length analysis of Sexual Offences Against Children, 1,300-page report of the Committee on Sexual Offences Against Children and Youth, commissioned by the federal government 19 Dec 83 under chair Robin Badgley. Report recommends “act-specific” offences (e.g., sexual touching; abuse of position of trust; etc.); uniform age of consent of 18 for vaginal or anal penetration, and 16 for other types of sexual activity. Story notes that “current age of consent for any type of gay sex is 21 and for straight sex it’s 14 or 16, depending on the ‘previous character’ of the woman.” The overall message of the Badgley Report, it says, “is that we need more laws, and more strict ones.”
  • TBP Aug 85: Closing the Barn Door. Extensive analysis of Pornography and Prostitution in Canada, report of the Fraser Committee (see Sep 83), released 23 Apr 85. Story sees prostitution- related recommendations — on soliciting, procuring, living off the avails, some on bawdyhouse law — as “forward-looking.” (As far as I know, none was later implemented; Tories had recently introduced tougher soliciting laws.)

Exceptions to “buggery” and “gross indecency” proposed to extend to more than two people having sex — except where any of them is under 18. Pornography proposals call for tougher penalties for creation or distribution of material seen as violent or “degrading” (though report says the term may be too vague), and that involving “children” — defined as anyone under 18 — for which possession would also be a crime. So would creation or possession of material “which advocates, encourages, condones or presents as normal the sexual abuse of children.” Story notes that, since most sex with anyone under 18 is defined in law as abuse, “it would become illegal to advocate lowering, let alone abolishing, the age of consent.”

  • TBP Sep 85: High courts and lowered barriers: Ruling puts constitutionality of age- of- consent laws in doubt. “In a string of recent decisions, Ontario and BC courts have ruled that Criminal Code age- of- consent provisions violate the Canadian Charter of Rights and Freedoms” (in effect 17 Apr 85). Rulings cited discrimination in law, based on both age and sex, in cases involving people under 18.


  • TBP Jan 86: Equality committee calls for gay rights. (See entry for same date under Federal human rights protection.) Recommendations include a uniform age of consent.
  • TBP Aug 86: Back in the gutter again: Proposed federal legislation on pornography is so bad, only the loonies support it. Unfortunately, the loonies are in power. Justice minister John Crosbie, 10 Jun 86, introduces Bills C-113 (on child sexual abuse) and C-114 (on pornography). Both incorporate proposals made by the Badgeley and Fraser committees (see Jan 85 and Aug 85). “Gross indecency” to be dropped; age of consent effectively lowered to 14 for all acts but “buggery,” for which it would be 18. Involvement of anyone under 18 in production or distribution of pornography would be a crime. Bill C-114 defines “pornography”, “sexually violent behaviour”, “degrading pornography”, and “pornography that shows physical harm” — all very broadly — and is criticized even by some feminists fighting pornography.
  • TBP Oct 86: Porn bill dies; resurrection by Tories feared. Bills C-113 and C- 114 die on order paper as 33rd session of Parliament ends, 28 Aug 86. Story says both could be reintroduced in the next session.


  • Xtra 16 Oct 87: Got a Charter in our pocket (see Federal human rights protection). Story says: “A law setting 18 as the age of majority for all sexual activity has been passed, but still waits to be put into effect.” (Details not given. See story below.)
  • Xtra 11 Dec 87: Not quite anything goes: Criminal Code changes will liberalize sex laws. Amendments to CC, passed but not in effect, reported to set age of consent at 14 and allow sex among more than two persons — with exceptions: anal intercourse not allowed under age 18 and is still a crime if more than two persons present; sex between a person under 18 and anyone in a position of authority, or on whom he or she is dependent, is illegal. Sexual acts in public illegal; “public” defined as “any place to which the public have access as of right or by invitation, express or implied.”


  • Xtra 1 Jan 88: Year-end compendium for 1987 reports: “The federal government introduces revamped porn legislation May 4, barely different than the sweeping bill proposed a year earlier and criticized by civil libertarians, artists, feminists and others”; and “Parliament repeals the gross indecency law” in June. (No specifics. Porn bill likely C-54 (below). Gross indecency repeal likely part of CC amendments noted above; see 25 Aug 89 for details.)


  • Xtra 29 Jan 89: Censorship opposed: AIDS groups and AGO knock Bill C-54. AIDS organizations say “pornography is so broadly defined that many educational materials would become illegal.” Art Gallery of Ontario says “a sizeable portion” of its collection and more than half its books and slides would be restricted.
  • Xtra 25 Aug 89: Deciphering the Code: Progress & confusion in latest Criminal Code amendments. Marking 20th anniversary of 26 Aug 69 CC amendments decriminalizing sexual acts between any two persons 21 or over in private, Peter Maloney explains latest amendments, passed Jun 87 and in effect 1 Jan 88. Provisions noted in Xtra 11 Dec 87 and 1 Jan 88 (above) are as reported, but Maloney notes others: “laddering” of age of consent (first proposed in 1981), allowing non-anal sex between a person 12 or 13 years old and a person up to two years older; and — for the first time — making it an offence to obtain or attempt to obtain sex from a person under 18 for “consideration” (food, housing, money, etc.). “Sexual touching” provision makes it an offence to “invite, counsel or incite” anyone under 14 to touch themselves or anyone else for a sexual purpose — potentially making it a crime to tell a young person that masturbation is normal. Bawdyhouse law remains, with term defined as before. (For details see Current state of the Criminal Code.)


  • Xtra 23 Dec 92: Year-end compendium reports, for 27 Feb, “The Supreme Court of Canada releases the Butler decision, which defines ‘obscenity’ as what the community would consider ‘harmful,’ particularly to women and children.” Ruling was hailed as progressive by feminist groups seeking harm- based obscenity definition, but worried free speech advocates. First police action based on the Butler decision, 30 Apr 92, was against Toronto’s Glad Day Bookshop for sale of the lesbian sex magazine Bad Attitude. It was found obscene, under the Supreme Court’s new criteria, 19 Feb 93. (See note to section 163.1 in Current state of the Criminal Code.)


  • Xtra 24 Dec 93: Year-end compendium reports, for Jun 93, “Parliament passes the so- called kiddie porn bill. Although the age of consent is 14, it criminalizes sexually explicit images or written materials that portray anyone under 18 or who appears to be under 18.” (Emphasis added. No other Xtra story found; fate of Bill C-54 (see 29 Jan 89 above) not determined. See section 163.1 in Current state of the Criminal Code.)


  • Xtra 17 Mar 95: Anal sex law struck down: Judge rules legislation is unconstitutional. Federal Court justice rules 24 Feb 95 that CC Section 159, setting higher age of consent for anal sex than for other sex acts, discriminates against gay men and violates the Charter of Rights. Federal lawyers had argued (as was done when law was amended in Jun 1987) that provision would help prevent transmission of HIV. Story says federal government will appeal decision (but see 29 Sep 95 below).
  • Xtra 9 Jun 95: Have sex, go to jail: Court ruling that teens can have anal sex may be appealed. Ontario Court of Appeal rules 24 May 95 (in case independent of the one above) that different ages of consent for different sexual acts is discrimination (two judges say based on age; one on sexual orientation) prohibited by Section 15 of the Charter or Rights. Newly elected PC government of Ontario has 60 days to appeal.
  • Xtra 29 Sep 95: Teen sex now legal. Ontario will not appeal 24 May 95 decision striking down differential age of consent, making it (in Ontario) 14 for all sexual acts. Story notes federal government has yet to decide on appeal of similar 24 Feb 95 Federal Court ruling. (See note to section 159 in Current state of the Criminal Code.)

Intro & list of abbreviations / List of pages / Next page (Current state of the Criminal Code)

What we demanded; What we got (Summary on Criminal Code reform)

Last revised: June 24, 1997