Questions and Answers - An Act related to the repeal of section 159 of the Criminal Code

1. What does the Bill propose to do?

Bill C-32 proposes to repeal section 159 of the Criminal Code, an unconstitutional offence that prohibits engaging in anal intercourse, except by a husband and a wife or two persons who are both 18 years or older, provided that the act is consensual and takes place in private, which means not in a public place and not in the presence of others.

The Bill would also make a number of consequential amendments. For example, it would remove all references to section 159 in the Criminal Code, the Corrections and Conditional Release Act and the Youth Criminal Justice Act.

The Bill would also clarify that historical sexual offences, such as section 159's predecessors, gross indecency and buggery, can still be used in historical cases, as long as the conduct amounted to sexual assault or child sexual abuse. Because sexual offences prior to 1983 were gender and act specific, "buggery" and "gross indecency" are the main pre-1983 offences available to address certain types of historical sexual offending, in particular against male victims.

Specifically, the Bill clarifies that pre-1983 sexual offences, including buggery and gross indecency, can only be used if the conduct at issue would be an offence under existing sexual offences, if it occurred today. This provision would:

• prevent historical sexual offences from being used in cases involving consensual sexual activity, for example between persons of the same sex;
• signal that pre-1983 historical offences can continue to be used to address sexual offending in appropriate cases; and
• signal that cases involving post-1983 sexual offending should proceed under the general sexual assault offences, or under the the child-specific offences, if the conduct involved children and took place after 1988 when those offences came into force.

2. Why is the Government proposing to repeal an offence that could help protect Canadians from sexual offending?

Non-consensual anal intercourse is captured by existing sexual assault laws, including child-specific offences, which prohibit all non-consensual sexual activity, from fondling to vaginal or anal penetration. These offences provide comprehensive protection against all forms of sexual offending; section 159 is not required for this purpose.

Moreover, section 159 has been found to violate section 15 of the Charter on the basis of marital status, age and sexual orientation by four appellate level courts and two trial level courts. It is widely accepted that section 159 is unconstitutional and of no force and effect.

The government is committed to ensuring that Canadians are safe while at the same time protecting their rights and freedoms. Repealing section 159 is consistent with this commitment.

3. Since section 159 captures conduct that constitutes sexual assault and sexual abuse of children, isn't it just another tool available to law enforcement?

Section 159 captures all non-consensual anal intercourse, including anal intercourse with children below the general age of consent to sexual activity (i.e., 16 years), but it also captures consensual anal intercourse in certain circumstances. For example, the offence prohibits consensual anal intercourse involving 16 or 17 year old unmarried persons, although they may consent to all other forms of non-exploitative sexual activity. The offence also prohibits consensual anal intercourse involving more than two persons, although three or more persons may consent to all other forms of sexual activity.

4. Which courts have found section 159 to be unconstitutional and why?

Section 159 has been found to violate section 15 of the Charter, which guarantees the right to equality, by:

• Ontario Court of Appeal in 1995 (C.M.);
• Federal Court of Canada, Trial Division in 1995 (Halm);
• Quebec Court of Appeal in 1998 (Roy);
• Alberta Court of Queen's Bench in 2002 (Roth);
• British Columbia Court of Appeal in 2003 (Blake); and,
• Nova Scotia Court of Appeal in 2006 (A.S.).

Section 159 was found to violate the Charter's equality guarantee on the basis of marital status, age and sexual orientation because it provides a limited exception for a "husband and wife" only and makes a distinction between the age of consent for anal intercourse, which is 18 years, and the age of consent for other types of sexual activity, which was 14 years until 2008, when it was increased to 16 years. The offence was also found to have a disparate impact on homosexual males, because anal intercourse is a "basic form of sexual expression for gay men" (Ontario Court of Appeal in C.M., 1995, paragraph 21).

5. Shouldn't the Supreme Court of Canada be afforded a chance to analyze the constitutionality of section 159 before it is repealed?

Four appellate courts have found section 159 to be unconstitutional on the basis of well-established Charter principles. Repealing section 159 would send a clear message to law enforcement that the sexual assault and child sexual offences should be used in all cases involving sexual assault and child sexual abuse.

6. What are the origins of section 159?

Anal intercourse is the modern term for "buggery;" it was originally prohibited by the "buggery" offence. Other types of sexual activity that were historically considered to be "immoral" or "unnatural," but fell short of intercourse, were prohibited by the "gross indecency" offence. In 1969, the Criminal Code was amended to decriminalize "buggery" and "gross indecency" between married persons of the opposite sex and between consenting adults who were at least 21 years, provided that the conduct takes place in private and is consensual. In 1988, the "gross indecency" offence was repealed, the "buggery" offence was re-named "anal intercourse" and the applicable age of consent was lowered from 21 years to 18 years.

The offences prohibiting "buggery" and "gross indecency" find their origin in antiquated sodomy laws, dating back to the middle ages and earlier, and were included in Canada's first Criminal Code in 1892.

7. Why does the Bill specify that charges can't be laid under historical sexual offences, unless the conduct would be an offence if it occurred today?

Prior to 1983, when the general sexual assault offences came into force, Canada's sexual offences were gender and act specific. For example, the main pre-1983 sexual offence prohibited rape by a man of a woman who was not his wife. This meant that the buggery and gross indecency offences were two of the very few offences that could apply to certain types of sexual offending that took place prior to 1983, in particular against male victims. But, like section 159, these offences captured some consensual sexual activity, in addition to non-consensual sexual activity.

To ensure that victims of sexual offending receive as much protection as possible under the law, regardless of when the offending occurred, the Bill clarifies that charges can be laid under historical sexual offences if the conduct alleged would be an offence under today's sexual offences. This would ensure that historical sexual offences are used to protect victims of sexual offending and not to punish persons who engaged in consensual sexual activity.

8. Which Criminal Code offences apply to cases involving forced anal intercourse or anal intercourse with young persons below the age of consent?

The Criminal Code's general sexual assault offences (sections 271 to 273) and child-specific sexual offences (e.g., sections 151 to 153) capture all non-consensual sexual activity and sexual activity with persons below the age of consent. This includes the full range of sexual acts, from fondling or kissing to vaginal or anal penetration.

The Criminal Code sets the age of consent to sexual activity at 16 years. In certain circumstances, such as where there is a relationship of trust, dependency or authority or the relationship is otherwise exploitative of the young person, the age of consent is 18 years.

9. Are there Criminal Code offences that apply when consensual sexual activity, including anal intercourse, takes place in public or in the presence of others?

Section 173 (indecent acts) prohibits doing an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person. An indecent act is one that causes harm or presents a significant risk of harm by: significantly interfering with the public's autonomy and liberty; pre-disposing others to anti-social behaviour; or, physically or psychologically harming persons involved in the conduct. The harm or risk of harm must also be incompatible with the proper functioning of society (Supreme Court of Canada, Labaye, 2005).

10. Are charges still being laid and convictions entered under section 159?

Section 159 continues to be charged and convictions continue to be entered, including in jurisdictions in which the offence has been struck down. For example, in 2014/2015, the most recent year for which data on Criminal Code charges is available, there were 69 section 159 (anal intercourse) charges brought before adult courts in Canada, but no convictions. In 2013/2014, there were 98 section 159 (anal intercourse) charges brought before adult courts in Canada, which resulted in 7 convictions under section 159. Since section 159 was enacted in 1988, the conduct at issue in these cases must have occurred after that date, but exactly when that conduct occurred is unknown.

11. How many of the cases charged under section 159 involved consensual sexual activity?

The facts of each section 159 case must be analyzed to determine whether consensual sexual activity was at issue. However, reported case law indicates that the majority of section 159 cases involve non-consensual sexual activity.

12. If section 159 is unconstitutional, why do charges continue to be laid and convictions entered?

Because section 159 has not yet been repealed, it still appears in the Criminal Code. Some may not be aware that it is unconstitutional. Removing it from the Criminal Code would ensure that appropriate charges are laid in cases involving sexual offending, such as the general sexual assault offences or the child-specific sexual offences, depending on the facts of the case.

13. Have Provinces and Territories been consulted on this Bill?

The constitutionality of section 159 has been discussed at the Uniform Law Conference of Canada (ULCC), which brings together representatives of federal, provincial and territorial governments. In 1993 and 2010, the ULCC recommended that section 159 be repealed. Furthermore, repealing section 159 would assist in clarifying which offences should be charged in cases involving sexual offending. Greater legal clarity facilitates the enforcement of the criminal law, which is primarily the responsibility of provinces.

14. How would repealing section 159 be received internationally?

As a strong supporter of human rights, it is expected that the international community will welcome Canada's proposal to repeal section 159. Canada has been criticized by various international bodies and NGOs for failing to repeal the offence on the basis that it criminalizes homosexuality. Repealing the offence would be widely acknowledged as a positive step toward affirming the rights of the gay community.

15. Are those who have been convicted under section 159 or its predecessor offences of buggery and gross indecency going to be considered for pardons ?

The Government of Canada is reviewing cases of individuals convicted of the historical offences of "gross indecency" and "buggery" in past years, to determine if pardons are warranted in cases involving consensual homosexual sexual activity. With the repeal of section 159 from the Criminal Code, past convictions for the offence of "anal intercourse" will also be considered as part of the review. As this matter falls under the purview of the Minister of Public Safety and Emergency Preparedness, any further inquiries should be directed to Public Safety Canada.