The CBA is pleased to have the opportunity to present today on an important equality issue in this area as well. It's an issue that the legal community has been aware of for more than a decade. It's raised now before this committee, because for the first time in some time, Parliament is again dealing with the issue of age of consent. I am speaking about the discriminatory provisions around anal intercourse in section 159 of the Criminal Code.
Since 1995 courts have told us that section 159 violates the charter, discriminating against gay men by stigmatizing their sexual conduct. One might ask why this is still an issue if courts have told us since 1995 that section 159 should be of no force and effect.
Courts have still had to deal with section 159 since 1995. We saw it come up again in 1998 in Quebec, in 2003 in British Columbia, in 2004 in Alberta, and in 2006 in Nova Scotia. All of those cases are cited at footnote four of our submission.
I would particularly note that for the 2006 case in Nova Scotia, a self-represented individual had to take the issue to the court of appeal in order to have his conviction under section 159 overturned.
This is actually still a live issue. But regardless of it being a live issue in the courts today, the fact that a discriminatory provision still exists in the Criminal Code sends a message in and of itself that is inappropriate and discriminatory.
We have also heard there are objections being raised to dealing with section 159 in the context of this bill.
Of course it's not for a witness to tell the committee about its own procedure. I will say there may be ways this committee can deal with the section 159 issue that are within the scope of the bill before you today. It may be that it instead requires the political will of the government and the minister to either amend the bill or to deal with section 159 in some separate manner.
The CBA firmly takes the position that full equality requires the repeal of section 159 and that the time is now.