The Power of Perspectives

The Canadian Bar Association

Kim Covert

CBA groups urge repeal of Criminal Code section 159 at ‘earliest opportunity’

April 6 2017 6 April 2017


It used to be that when the Criminal Code talked about sex, it talked about sexual acts – and it made a whole host of them illegal – particularly if they were associated with homosexuality. But in the 1980s, a more open-minded wind blew through the Code, bringing with it the idea that the specific acts should be less of a focus than the age of the people performing them and their capacity to consent to them.

As it currently stands, the age of consent is 16, and 16-year-olds can consent to any form of sexual activity that it pleases them to engage in – except one.

Section 159 of the Criminal Code continues to make it illegal for anyone under 18 to consent to anal intercourse.

In November, Justice Minister Jody Wilson-Raybould introduced Bill-C-32 which would repeal section 159, a proposal that CBA’s Criminal Justice Section and SOGIC Forum heartily endorse – in fact, they wrote to the House of Commons Justice and Human Rights Committee almost exactly 10 years ago asking for this very thing.

“Bill C-32 is a long-overdue step to remove antiquated and discriminatory consensual sodomy laws from the Criminal Code,” the groups say in a letter to the Justice Minister in February.

“Section 159 singles out one sexual act, anal intercourse, and treats it differently than other sexual activity. In effect, it prohibits consensual anal intercourse involving 16- or 17-year-old unmarried persons, even though they may consent to all other forms of non-exploitative sexual activity.”

The groups note that the Criminal Code will continue to adequately protect children from sexual abuse and exploitation even if section 159 is repealed.

A 1995 review of the history of section 159 shows its overriding purpose is to “(discourage) gay sexual expression,” the groups write, and not, as some had argued, to protect young people from HIV transmission. The Ontario Court of Appeal came to the same conclusion that same year and since then appellate courts in British Columbia, Quebec and Nova Scotia have all ruled that section 159 violates the equality rights guaranteed in section 15 of the Charter.

Still, law enforcement continues to rely erroneously on the section, according to background information provided by the government. That should give added impetus to immediate action.

“Despite its constitutional standing as a nullity, section 159 continues to disrupt lives, undermine the dignity of young Canadians, and perpetuate outmoded and illegal stereotypes, the letter says. “We urge its repeal at the earliest opportunity.”

Post script: This letter was sent on Feb. 28, 2017. On March 7 the Justice Minister introduced a bill aimed at clearing out the “zombie laws” that were still on the books despite having been ruled unconstitutional by the courts. The summary of Bill C-39 says:

This enactment amends the Criminal Code to, among other things, remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada. It also repeals section 159 of that Act and provides that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to the Corrections and Conditional Release Act and the Youth Criminal Justice Act. (Emphasis added)

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