Bill C-32: An Act related to the repeal of section 159 of the Criminal Code

Tabled in House of Commons, November 21, 2016

Explanatory Note

The Minister of Justice has prepared this "Charter Statement" to help inform public and Parliamentary debate on Bill C-32, An Act related to the repeal of section 159 of the Criminal Code. One of the Minister of Justice's most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms ["the Charter"]. By tabling this Charter Statement, the Minister is sharing some of the key considerations that informed the review of Bill C-32 for consistency with the Charter. The Statement identifies Charter rights and freedoms that may potentially be impacted by the Bill and provides a brief explanation of the nature of these impacts, in light of the measures being proposed.

The Statement also identifies potential justifications for any limits the Bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

The Statement is intended to provide legal information to the public. It is not intended to be a comprehensive overview of potential impacts, recognizing that the Bill may change over the course of its passage through Parliament. Additional considerations relevant to the constitutionality of the Bill may also arise in the course of Parliamentary study. The Statement is not a legal opinion on the constitutionality of the Bill.

Charter Considerations

The Minister of Justice has examined this Bill for compliance with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill, including the importance of promoting values that underlie the Charter - notably equality, respect for diversity, human dignity, liberty and autonomy.

The following non-exhaustive discussion of potential impacts on the rights and freedoms guaranteed by the Charter is presented to assist in informing the public and Parliamentary debate.

Repealing section 159 of the Criminal Code

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 did not involve 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 adults who were at least 21 years old, provided that the conduct was consensual and took place in private. 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 to 18 years.

The offences prohibiting "buggery" and "gross indecency" found their origin in antiquated sodomy laws and were included in Canada's first Criminal Code in 1892.

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, including sexual activity with persons below the age of consent. These prohibitions apply to the full range of sexual acts.

The Criminal Code sets the age of consent for 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.

  1. equality impacts

    The repeal of section 159 of the Criminal Code would promote the equality rights protected by subsection 15(1) of the Charter, which provides that everyone is equal before and under the law. Section 159 prohibits anal intercourse, except by a husband and wife or two persons who are both 18 years or older, and where the act is consensual and takes place in private. The offence has had a disparate impact on homosexual males, whose consensual sexual activities have been uniquely targeted for prohibition under the Criminal Code.

    In addition, courts in five provinces as well as the Federal Court of Canada (Trial Division) have found section 159 to unjustifiably discriminate on the prohibited grounds of sexual orientation, age and marital status.

  2. liberty and autonomy impacts

    The repeal of section 159 would also promote the liberty interests protected by section 7 of the Charter. Liberty is promoted both because a prosecution under section 159 could result in a sentence of imprisonment, and because section 159 captures consensual sexual activities.

    Section 7 of the Charter protects against deprivations of liberty that do not accord with the principles of fundamental justice. The principles of fundamental justice require that laws: prohibit no more conduct than necessary to achieve their objectives; do not arbitrarily deprive individuals of their liberty; and do not have effects that are grossly disproportionate to their objectives. Section 159 is open to challenge on all three grounds.

Proposed section 156 of the Criminal Code

The general sexual assault and child sexual offences apply to sexual offending that is alleged to have occurred since those offences came into force in 1983 and 1988 respectively. The repealed offence provisions would continue to be available to prosecute conduct that is alleged to have occurred prior to 1983, before the general sexual assault provisions came into force. Some of these repealed offence provisions, which were enacted pre-Charter, may not comply with today's Charter standards. In some cases, such offence provisions (including buggery and gross indecency) are still needed to prosecute alleged historical sexual offending that would constitute an offence if committed today. Such conduct must be prosecuted under the offences that existed at the time the criminal conduct is alleged to have occurred. The enactment of proposed section 156 would limit any such prosecutions to those that do not raise Charter concerns. In particular, section 156 would prevent the use of these repealed offences to prosecute sexual activity that was consensual when it occurred and that would be legal under today's laws.

Although the application today of certain repealed sexual offence provisions could negatively impact sections 7 and 15 of the Charter for reasons similar to those mentioned above in relation to section 159, section 156 is intended to limit the scope of conduct liable to prosecution within boundaries that respect the Charter.