The 1969 Amendment and the (De)criminalization of Homosexuality

From the earliest days of colonization to 1969, sodomy laws made sex between men illegal in Canada. In addition, a law enacted in 1892 made “gross indecency” between men illegal. This included anything that indicated same-sex attraction, including simple touching, dancing and kissing. The law was extended to women in 1953. In 1969, however, sodomy and gross indecency laws were changed, making such acts legal under some circumstances. The parties involved had to be 21 years of age or older and conduct their affairs in private. Sodomy and gross indecency remained illegal outside of the home or if three or more individuals were involved or present. Thus, Canada’s Criminal Code continued to equate homosexuality with criminal behaviour under many circumstances.



Gay Pride Vancouver
Rainbow colors painted on a crosswalk for Gay Pride Week in Vancouver, British Columbia. Photo taken on: August 05th, 2012

Sodomy Laws and Prosecution During the Colonial Period

For much of Canadian history, individuals who did not conform to heterosexual norms were viewed as sick or immoral and feared as a danger to society. Sodomy between men was considered so terrible that, up until 1869, it was an offence punishable by death. However, there is no evidence that anyone was executed for sodomy. Instead, sodomy convictions were usually commuted (changed) to imprisonment. Other punishments included whippings and time spent in pillory. (A pillory was a wooden structure with holes for the head and hands, where prisoners were subject to public abuse and humiliation.)

Pillory

The 17th century perjurer Titus Oates in a pillory.

The earliest known instance of a sodomy conviction in Canada occurred in 1648. It involved a military drummer stationed with a French garrison at Fort Ville-Marie, on the island of Montréal. At the time, the settlement was a tiny outpost of the French empire. Records show that he was charged with “crimes of the worst kind” — a euphemism commonly used for homosexual acts. He was found guilty and sentenced to death. There is no mention of a second man being charged. Jesuits intervened on the drummer’s behalf and succeeded in having his case transferred to Québec City, where his life was spared. However, to escape the gallows, he had to become an executioner himself.

Sodomy convictions were uncommon in the following decades and centuries. This is likely the case in part because a sodomy conviction required an eyewitness account, which was rarely available. In 1842, a soldier of the 89th Regiment of Foot testified against two of his comrades and provided a detailed account of their sexual relations. The two were convicted, but their sentence — death by hanging — was commuted (changed) to life imprisonment. Both served about a decade in Kingston Penitentiary. However, such eyewitness accounts and convictions were rare.

Sodomy Laws and Prosecution in 19th-Century Canada

By the late 1800s, there were growing concerns about “sodomites” and the difficulties in securing their convictions. In 1887, a corporal in Regina reported that he witnessed RCMP constable Louis Le Fontaine perform oral sex on a saloon keeper. Le Fontaine was arrested, but Regina’s crown prosecutor advised that he could not be charged under existing statutes because they only targeted sodomy. Hoping the matter could still be prosecuted, a Mountie wrote to the Deputy Minister of Justice, stating “I enclose a ‘beastly’ case for perusal when you feel your stomach is strong. Surely, there is some law under which the brute could be punished.” Since the Mounties could not prosecute the case in the courts, they subjected Le Fontaine to public humiliation in front of a general parade. He was stripped of all decorations and dismissed from the force.

Around the same time, a Montreal newspaper argued that stricter laws were needed. The newspaper drew attention to the fact that men who were caught flirting with each other behind the city’s courthouse did not face severe consequences:

From the twilight until midnight, one could see gliding among the poplar trees long, lanky beings with tapered legs swishing by with an effeminate air, coughing, and calling to one another in sugary tones…. Many times, these brutes, fashionably dressed, had been brought before our courts of justice for having given passersby a view of their dirty pastime. Light sentences permit them to return to the pleasures of their race.

Gross Indecency Law, 1890 to 1969

In 1890, in response to public concerns, the House of Commons introduced a new offence called “gross indecency,” which made it easier to charge suspected sodomites. The gross indecency law became part of the country’s first Criminal Code when it was adopted in 1892. The original language referred solely to acts between men. Sex between women was ignored, as was customary at the time.

Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person.

This legislation criminalized conduct that wasn’t specifically covered under the sodomy law. What exactly constituted “gross indecency” was never defined. However, it was understood to include any interactions that indicated attraction between men and a motivation to engage in sex.  

Richard Cartwright

Richard Cartwright (1835-1912) was a cabinet minister in five Liberal governments.

Some members of the House of Commons expressed concerns over the legislation. Ontario MP Richard Cartwright agreed that this “particular crime…has been on the increase in certain sections of society and can hardly be punished too severely,” but he thought that the term “gross indecency” was too vague. Cartwright’s comments reflected social anxieties about homosexuality at the time but also raised concerns about the law’s potential for misuse due to its lack of clarity. David Mills, an MP and former Liberal Minister of the Interior, also raised concerns about legislating morality in such severe terms:

All these offences against morality…[are] rather sins than crimes…and altogether different in that respect from the other crimes embraced in the statute book, and it is a question whether crimes of this sort should be punished by long terms of service in the penitentiary.

Despite Mills’ reservations, he still believed that “flogging, or something of that sort” was in order.

In the decades that followed, men who engaged in same-sex relations were subject to arrest. This was true even if they restricted their activities to the privacy of their own homes. In 1955, police broke into a house in Edmonton and arrested two men for same-sex relations. Flash newspaper reported that “police busted into McCurdy’s cellar lair recently and caught the nude loverboys red-handed after a woman resident in the same building overheard their bestial lovemaking…. Marvin earned himself a year in prison by confessing all.”

In 1953, the Criminal Code was amended to include women under the gross indecency law by removing the specific reference to men. According to Criminal Code, S.C. 1953-54, c. 51, s. 149, “Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.”


1969 Amendment to Criminal Code

In 1969, the sodomy and gross indecency laws were amended following public outrage over the conviction and sentencing of Everett George Klippert for homosexuality. The Criminal Law Amendment Act, 1968–69 added an exemption to the Criminal Code that made such acts legal under certain circumstances. The individuals involved had to be consenting adults of at least 21 years of age, and the act could only be conducted in private. Sodomy and gross indecency remained illegal outside the house or if three or more individuals were involved or present. Thus, homosexuality was still considered a crime under many circumstances

Everett Klippert
Everett Klippert, shown here in the 1970s, was imprisoned for about a decade, for being gay.

Despite the 1969 amendment to the Criminal Code, social attitudes changed little from earlier decades and centuries. Many continued to view homosexuality as immoral and corrupt and, therefore, deserving of punishment. During the 1970s, the police dramatically stepped up their use of the indecency laws to charge gay men and women, sometimes at gunpoint. These convictions were used to intimidate and clamp down on a growing LGBT community that was beginning to advocate aggressively for equal rights and the repeal or amendment of all laws that discriminated against homosexuality.

It was not until 1987 that the Criminal Code repealed the offence of gross indecency. At the time, the law continued to criminalize sodomy, with exemptions (provided no more than two people are present) for husbands and wives and for two consenting parties above the age of 18. In 2019, the age of consent for sodomy became equal for all individuals at 16.

Pride March at Allan Gardens in Toronto, 1974.