Thank you for inviting us to speak here today. I'll be sharing my time with Professor Kinsman.
We're here representing a group of gay and lesbian historians, with expertise in the policing of queer sexualities. We're here to follow up on the 10th report of the Senate human rights committee, which called on this government to address archaic laws used to criminalize LGBTQ2 people in Canada. I really mean archaic: indecent acts, vagrancy, bawdy houses. This is like the Antiques Roadshow of the Criminal Code.
Bill C-75 repeals section 159, anal intercourse, and this is an important part of thePrime Minister's recent apology to LGBTQ2 people, in which he specifically referenced the criminal provision against buggery and the harm caused by it. Acknowledging this harm, the government passed Bill C-66, which allows those convicted of this offence to apply to have their records expunged under certain conditions.
The repeal of anal intercourse is part of the larger effort to eliminate what has been labelled “zombie” laws. These laws are still on the books despite court rulings specifically declaring them unconstitutional. The Prime Minister also apologized to those arrested in the bathhouse raids, and he specifically referenced the injustice caused by the bawdy house law, but this was excluded both from Bill C-66 and the bill before us today. This is because the bawdy house law does not precisely fit the government's narrow definition of a zombie law. It has not explicitly been declared unconstitutional by the courts. It's not a zombie law. It's a different kind of monster. It's a Frankenstein law.
Why am I using this broad cultural reference to Frankenstein to describe the bawdy house law? Well, I'm going to give you three reasons.
First, like Frankenstein, the bawdy house law is a 19th-century relic. It was included in the original 1892 Criminal Code as a prohibition against brothels and other spaces of sex work. It was amended in 1917 to include places of indecency, in an effort to close massage parlours. This law is anachronistic and it must be repealed.
The second reason I am calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law is known to cause harm. In the 2013 Bedford decision, the Supreme Court found the bawdy house law to cause harm to sex workers that is grossly disproportionate to the objectives of the law. As a result, the reference to prostitution was removed from the bawdy house law under the Protection of Communities and Exploited Persons Act in 2015, PCEPA.
PCEPA maintained many unjust laws, including the bawdy house law and its reference to indecency, which was used by police to raid bathhouses. From 1968 to 2004, more than 1,300 men were charged in bathhouse raids all under this law. You heard last week how this caused harm to gay men like Ron Rosenes, a member of the Order of Canada who to this day has a police record from being charged in the 1981 Toronto bath house raids.
The government has specifically apologized for this unjust law. Why do we need to be here to ask for its repeal? Men like Ron Rosenes deserve to have their records cleared.
The third reason I'm calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law does not resemble the intention of its creator. This law was created by Parliament to criminalize brothels and other sexual spaces based on a community standard of morality.
The 2013 Bedford decision led to the removal of sex work from this law. This left behind the vague concept of indecency, which was significantly altered by the Supreme Court in the 2005 Labaye case. In that decision, the law was not declared unconstitutional; instead, it was rewritten by the court. The definition of indecency was changed from a community standard of morality to a standard based on non-consensual harm.
This new definition of a bawdy house is a very serious offence and is totally unrecognizable from what Parliament intended. What was once a morality law against brothels has turned into a heinous, violent crime. What type of establishment would allow such acts of non-consensual harm? Is a 19th-century morality law the best tool to combat such places?
Such acts are covered under other more appropriate sections of the Criminal Code. It's strange that clause 75 of Bill C-75 amends the bawdy house law to allow the possibility of summary conviction, a lesser penalty. This is inconsistent with the gravity of this offence as the courts have defined it now.
In 1982, then minister of justice Jean Chrétien said to this committee, “As a matter of principle, I believe that if sections of the Criminal Code have fallen into disuse or become obsolete, there was no reason to maintain them.” There were zero charges under the bawdy house law in 2017. Parliament does not need to wait for the courts to repeal this outdated law, especially a law that the Prime Minister has apologized for.
I urge this committee to not only repeal the zombie laws, but also the Frankenstein laws, and all other laws crafted in 19th-century morality that have criminalized LGBTQ2 people and sex workers.