Canada is repealing its law criminalizing anal sex, but it won’t pardon anyone

"Anal intercourse” is punishable by 10 years in jail upon conviction unless it's under certain circumstances.
November 15, 2016, 1:45pm

Liberals in Canada have introduced legislation to repeal an antiquated section of the country’s criminal code that formally bans anal sex, except for certain circumstances.

The section reads that “anal intercourse” is punishable by 10 years in jail upon conviction unless it is “between husband and wife, or any two persons, each of whom is 18 years of age or more.”

The age of consent for all other sex acts is 16.


“This section of the Criminal Code is discriminatory and the LGBTQ community has rightfully called for its repeal,” Justice Minister Jody Wilson-Raybould said at a press conference Tuesday after tabling the legislation. “Section 159 unfairly criminalizes consensual activity in certain circumstances.”

Though the minister said courts had ruled the section to be discriminatory, the government won’t be apologizing just yet to anyone charged under section 159. The Liberals are considering pardons for those charged under that section, but the legislation tabled Tuesday doesn’t come with pardons — that’s up to the minister of public safety, she said.

The law remains in effect in five provinces and three territories, according to a June report from gay rights group Egale that called for its repeal. Courts in Ontario were the first to declare the law unconstitutional in 1995 — followed by Quebec, Alberta, BC and Nova Scotia — but police have continued to use it to charge people. In Ontario between 2008 and 2014, 22 people have been charged under section 159, the report states.

“This was a key priority of the LGBTQ agenda,” said Edmonton Liberal MP Randy Boissonnault, who joined Wilson-Raybould for the press conference, said of the repeal of 159. He thanked the minister for her work on the issue, and when pressed on pardons, he promised the Liberals would do “a deep listen” around the country.


Boissonnault was also appointed a special LGBTQ2 advisor to the prime minister on Tuesday.

“We’re only getting started. There is a lot of work ahead of us,” he said.

Wilson-Raybould has talked about cleaning up the Criminal Code, and reiterated the promise Tuesday to clean up “zombie provisions” of the code. Anal sex aside, Canada’s Criminal Code bans everything from duels to witchcraft to murdering people “by influence of the mind alone.”

Ardent social conservative group Real Women of Canada pushed back on the legislative announcement, saying gay activists were pressuring the government, and the government shouldn’t have to apologize to anyone charged under 159. The group says Canada’s “alleged discrimination” against gay people is different from the country’s discrimination against other groups, for example when Canada turned away a German ship carrying 900 jewish refugees in 1939. Discriminating against gay people on the other hand, the group maintains, is justifiable because laws against homosexuality and sodomy protected people from bacterial infections and venereal disease — “the consequences of promiscuity before antibiotics.”

“You don’t have to agree with the past law that prohibited homosexuality in the Criminal Code. It may not be acceptable to everyone, but it was not unjust discrimination.”

It might seem laughable that anal sex between people who aren’t husband and wife, or aren’t over 18, is still illegal in Canada, where gay marriage has been legal for more than a decade. But Canada also maintains a one-year blood donation ban for men who have sex with men, and Toronto police recently went undercover to arrest gay men for having sex in a park.