Also, thanks to Dean Leckey for the support from McGill for the position that we are putting forward today before this committee.
The act of indecency section of the bawdy house law is linked to a broader legal construction of same-gender sex as indecent in Canadian history. This is also the case with the indecent acts offence. These sections have been and continue to be used to define LGBTQ2S practices as more indecent than similar heterosexual activities, mobilizing discriminatory practices against our communities.
In this presentation, I'm drawing on extensive research and writing that I've done, along with other members of our group, on the regulation and policing of consensual sexual activities in Canada. Since the late 19th century, the offence of indecent acts has been used to arrest LGBTQ2S people in bars, clubs, parks and washrooms. In these situations, the individuals involved have constructed relations of privacy and intimacy for themselves, hidden from view behind trees or bushes, and in cubicles with locked or closed doors, and have not been trying to bother other people. Often they have been entrapped by the police invading their privacy.
Police often used indecent acts instead of gross indecency or buggery charges because it was a lesser offence, and it was easier to prove in court. In the national security purge campaign, which the Prime Minister apologized for against LGBTQ2S people, indecent act was the charge that the RCMP threatened to use to get gay and bisexual men to give up the names of their friends in the public service and the military, so that the police could then purge those individuals.
In Ontario, following the mass resistance to the bath raids in the early 1980s, the police used targeted surveillance, including the use of video surveillance equipment, for indecent act arrests. These occurred in St. Catharines, Welland, Oakville, Oshawa, Mississauga, Guelph, Kitchener-Waterloo, and at the Orillia Opera House. The names of those charged were released by the police to the newspapers, leading a man in St. Catharines to kill himself.
According to the Right to Privacy Committee, 369 men in Toronto were arrested for indecent acts with other men just between July 1982 and April 1983. Thousands of people were unjustly arrested under the indecent acts offence.
Section 60 of Bill C-75 amends parts of the indecent acts provision. This provision must be entirely repealed. This would also allow those unjustly convicted under indecent acts to apply for expungement of their conviction, which they are currently denied under Bill C-66. It is not listed in that bill, and it is still on the books. This committee can actually make an effort to deal with this historically unjust offence.
Vagrancy is also a broad, ill-defined offence. It has historically been used against sex workers, but also to police people's genders and sexual expressions. Those viewed as wearing the clothes and/or otherwise engaging in the self-presentation of the “wrong” gender were charged under this offence. In a 1994 Supreme Court case, vagrancy was declared unconstitutional, and contrary to the charter. Clause 62 of Bill C-75 removes part of the vagrancy law, but like bawdy houses and indecent acts, the offence otherwise remains intact. It must be entirely repealed.
The targeted use of morality provisions and police entrapment have created historical links and ties between the struggles of LGBTQ2S communities and sex workers. We fully support the position that was presented to you by the Canadian Alliance for Sex Work Law Reform.
In 2015, the justice minister declared, “I definitely am committed to reviewing the prostitution laws”. Three years later, it is past time to act. In the broader context of repealing laws criminalizing sex work, we join the call for the repeal of the material benefits and advertising offences, which create unsafe working and living conditions for sex workers and puts sex workers at risk.
There are many other laws that have been used to criminalize the consensual activities of LGBTQ2S people that must be addressed, but are not mentioned in Bill C-75. We certainly hope they will be acted upon soon. These include obscenity laws that have been used against LGBT bookstores and publications and to construct non-conforming sexual representations as more obscene and indecent than similar heterosexual ones.
We also fully support the concerns that the Canadian AIDS/HIV Legal Network and many others have raised regarding the sections of the Criminal Code being used to unjustly criminalize those living with HIV.
In conclusion, we urge you to end the reliance of the Criminal Code on enforcing morality. This is done through various sections that define our sexualities as indecent and criminal. Instead, criminal offenses should be directed where they really need to be, which is on actual violence and actual harassment.
The apology process to our communities demands that the bawdy house laws and indecent act and vagrancy provisions are entirely repealed in Bill C-75. Otherwise, that apology remains flawed and unfulfilled. You have the opportunity to fix this now. We hope you will take it.