Canada’s Outdated Criminal Code Provisions
PMB – Section 159 of the Criminal Code of Canada
A Private Member’s Bill (PMB) is useful, even if it is not passed, to bring an issue to the attention of government, Members of Parliament, and the public. This is what NDP MP Craig Scott attempted to do when he introduced PMB C-448 on October 4th 2012. This Bill called for the repeal of section 159 of Canada’s Criminal Code, thus removing the distinction between anal intercourse and other forms of sexual activity. This section of the criminal code may be viewed as the criminalization of one part of gay sexual activity beyond the age of consent – although anal intercourse is not a sexual activity exclusive to gay persons. It is the intent to criminalize homosexual acts that is not only stigmatizing and outdated but unconstitutional.
Section 159 has been found unconstitutional by three courts in Canada: the Court of Appeal for Ontario, Quebec, and Alberta.
In the explanation in the case of R. v. C.M., 1995 before the Court of Appeal for Ontario, Justice Abella stated:
Anyone who is 14 or older, whether married or not, can consent to most forms of non-exploitive sexual conduct without criminal consequences, whereas no one can consent to anal intercourse unless he or she is at least 18 or married. Sexual orientation is an analogous ground of discrimination prohibited under s. 15 of the Charter. Gays and lesbians form a historically disadvantaged group, and s. 159 violates s. 15(1) of the Charter because it arbitrarily disadvantages individuals in that historically disadvantaged group — gay men — by denying to them until they are 18 a choice available at the age of 14 to those who are not gay.
Section 159 is not the only outdated provision in the Criminal Code of Canada. Recent events surrounding international religious violence and cruel blasphemy laws have provided Canadian organizations such as the Centre for Inquiry Canada (CFIC), public attention and outrage about attempts to stifle freedom of expression. The public has begun to critically examine and reject Section 296 of the Criminal Code, which states that “every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years”.
Our Stance at The Centre for Inquiry Canada
The Centre for Inquiry Canada has been instrumental in establishing the International Coalition Against Blasphemy Laws (ICABL) and the End Blasphemy Laws website. As the Blasphemy Project Intern, for CFIC, I have reached out to MP Craig Scott and received the needed support to consider a PMB repealing Section 296. These outdated provisions no longer reflect our modern, diverse, and tolerant society. Not only are both section 296 and 159 unconstitutional, they are not reflective of Canadian values. Unfortunately, Canada is maintaining these outdated ideas by allowing them to remain in the Criminal Code of Canada. If you agree that section 269 should be repealed click here to join our Action List and keep in touch with the CFIC’s End Blasphemy Laws Campaign.
This blasphemy update is provided by legal project intern Cassandra Martino with CFIC.