Egale: The law is "linked with the regulation of sexual morality"
Egale Canada
Submissions to the House of Commons Subcommittee on Solicitation Laws
April 18, 2005
1. Introduction
Egale appreciates the opportunity to make submissions on the important issues being addressed by the Subcommitee. Egale's submissions will be focused on the bawdy house provisions of the Criminal Code, in particular those relating to indecency.
The mandate of the Subcommittee is to study solicitation laws, including the offences related to keeping or using common bawdy houses, and to make recommendations regarding the safety and protection of sex workers and communities. Canada's solicitation laws do not exist in a vacuum. They are inextricably linked with the regulation of sexual morality generally. Egale believes it is important for the Subcommittee to examine this larger social and legal context, and to make recommendations that address this larger context.
Laws and policies that regulate sexual behaviour have long been used against lesbian, gay, bisexual and trans-identified (LGBT) people, and have done us great harm. For this reason, Egale believes that any prohibition of sexual activities must be justified on specific and compelling grounds. In the context of sexual activities between consenting adults, and where there is a reasonable expectation of privacy, there will rarely be sufficient justification to warrant criminalization.
Consensual sexual activities should not be prohibited merely because they offend community standards or are considered immoral by others. Egale believes the bawdy house provisions relating to indecency prohibit activities for exactly these reasons, and that there is no specific and compelling reason to criminalize them. They should therefore be repealed.
2. About Egale
Egale Canada is a national organization committed to advancing equality and justice for lesbian, gay, bisexual and trans-identified people, and their families, across Canada. Egale has members in every province and territory of the country. Our Board of Directors is comprised of an elected male and female representative from each of six regions of Canada.
Egale has appeared before numerous federal Parliamentary Committees, including the House of Commons Committees on Justice and Human Rights, Human Resources Development, Citizenship and Immigration, and the Sub-Committee on Tax Equity for Families with Dependent Children, as well as the Senate Constitutional and Legal Affairs Committee and the Joint Parliamentary Committee on Custody and Divorce. Egale has also participated in the Ministerial Legislative Review on immigration issues, Statistics Canada consultations concerning the 2001 census, public hearings conducted by the Canadian Radio-Television Telecommunications Commission, and public consultations held by the Royal Commission on New Reproductive Technologies.
Egale has intervened before the Supreme Court of Canada in every gay rights case that has reached the Court, including Egan v. Canada, Mossop v. Canada, Vriend v. Alberta, M v. H & Ontario, Little Sisters Book and Art Emporium v. Canada Customs, B.C. College of Teachers v. Trinity Western University, Chamberlain v. Surrey School Board, and most recently the Marriage Reference. Egale has also participated in numerous lower court cases, including the marriage cases in B.C., Ontario and Quebec.
Egale has been involved in extensive public education and international activities. Egale participates in annual consultations sponsored by the Department of Foreign Affairs and International Trade, and Egale representatives have attended the UN World Conference on Human Rights in Vienna, the UN World Conference on Women in Beijing, the International Year of the Family Conference in Montreal, and the UN World Conference against Racism in South Africa.
Egale maintains an active commitment to bringing an intersectional approach to our work, meaning that we recognize the linkages between different forms of oppression, including oppression based on race, sex, class, religion, (dis)ability, age, gender identity, gender expression, and sexual orientation. Respect for each individual's full identity requires that our struggle for equality cannot be carried out in isolation from the struggle for equality of all disadvantaged communities.
3. Background
a. Rationale for Criminalization
There are several provisions of the Criminal Code that regulate sex workers, including both solicitation and bawdy house laws. The nexus between the two lies not only in that they both regulate sex workers, but also that they are both based on the idea of regulating morality.
There has been an evolution in Canada's laws relating to regulation of sexual activities between consenting adults. Originally, these laws were largely based on community standards of morality. The first Supreme Court of Canada decision on this point stated:
"There does exist in any community at all times - however the standard may vary from time to time - a general instinctive sense of what is decent and what is indecent, of what is clean and what is dirty... There are certain standards of decency which prevail in the community, and [juries] are really called upon to try [cases] because [they] are regarded as representing, and capable of justly applying, those standards." (1)
Over time, courts have signaled a shift away from community standards and towards harm. In 1992, the Supreme Court of Canada held that the obscenity provisions of the Criminal Code should be interpreted not on the basis of morality, but rather, in terms of whether the material in question causes harm (2). This substitution of a harms-based approach has since been incorporated, at least in principle, by the Supreme Court into the interpretation of the indecency provisions of the Criminal Code as well. (3) Unfortunately, in practice no evidence of harm is actually required and judges often substitute their own views of what is harmful to determine if something is "indecent."
It is our view that Parliament should complete this evolution, and move society away from criminalizing private consensual adult behaviour where there is no evidence of harm to the community or other specific and compelling reason.
Egale has developed 5 guidelines through which we evaluate the regulation of sexual activity. We offer these to the Subcommittee as sample criteria that could be used to evaluate legislative options:
1. General. Laws and policies that regulate sexual behaviour have long been used against LGBT people. Thus any prohibition of sexual activities must be justified on specific and compelling grounds.
2. Equality. When laws or policies that regulate sexual behaviour are justified, they must be written and applied equally to all, in a manner that does not discriminate against LGBT persons or institutions.
3. Community Standards. Sexual activities should not be prohibited merely because they offend community standards or are considered immoral by others.
4. Harm Principle. Where there is a reasonable expectation of privacy, sexual activities between consenting adults that do not harm others should not be prohibited.
5. Sexual Abuse. Egale recognizes and affirms the need to protect against the harm caused by sexual abuse, and in particular sexual abuse of children and adolescents. In so doing, government should educate and empower adolescents to make healthy sexual choices.
b. Criminalization of Bathhouses
Egale's experience and expertise in respect of bawdy house laws lies mainly in dealing with raids of gay bathhouses. Although the Criminal Code’s impact on bathhouses is the focus of this submission, Egale also wishes to make clear that we support an end to the criminalization of all private adult consensual sex which does no harm to the public, regardless of the sex, gender identity or sexual orientation of the participants.
A bathhouse is a type of sex club that is generally a place where men have sex with men. In recent years, they have also been used as a place where women have sex with women.
Bathhouses are private places, in the sense that what takes place does so behind closed doors, out of sight of the general public. Although members of the public may enter, bathhouses are set up with a reception area where the activities taking place within it are not visible, and where those who wish to enter are apprised of the nature of the activities taking place. Thus there is a very real and effective separation between the public and the sexual activities taking place in the bathhouse.
Despite the private, adult, consensual nature of the sexual activities that take place within bathhouses, those who own, work in and patronize them risk being unjustly criminalized under three areas of the Criminal Code. The first is the area dealing with "common bawdy-houses":
Section 197(1) of the Criminal Code states:
"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency; (emphasis added)
Keeping or even being "found in" a "common bawdy-house" is an offence under section 210. Section 211 makes it an offence to take, direct or transport another to a common bawdy-house. Subsection 212(1) contains various provisions, mostly related to prostitution, but also some related to common bawdy-houses generally.
The second area of the Criminal Code that is used to target bathhouses is section 173, which targets "indecent acts" whether or not they take place in a "common bawdy-house". It states:
173. (1) Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.
A "public place" includes any place to which the public have access as of right or by invitation, express or implied. Despite the fact that any sexual activity which takes place within bathhouses is completely out of sight of the public, courts have interpreted them to be "public places" because of the wording of this definition. Parliament should change this wording.
There is no definition of "indecent act" or "acts of indecency" in the Criminal Code. Courts have a great deal of discretion in making this determination, resulting in tremendous uncertainty.
In 1993 in Tremblay, supra, the appellants were charged with keeping a bawdy house for the purpose of the practice of acts of indecency. The Supreme Court of Canada held that indecency should continue to be interpreted according to the community standards of tolerance, like the one used in obscenity cases. The Court said the degree of harm – in the sense of predisposing persons to act in an anti-social manner – is the central factor for the courts to consider in determining whether the act in question violates the community standard.
In 1997, this harms-based approach to indecency was affirmed and further elaborated by the Court. (4) The Court held that the relevant harm to be considered in determining whether an indecent performance exceeded the community standard was the attitudinal harm on those watching the performance as perceived by the community as a whole.
Despite this emphasis on harm, many have argued that the harms based community standard test informing both obscenity and indecency laws is highly discretionary and arbitrary, and allows the courts to continue to import the very conservative sexual morality that the test was intended to replace. (Cossman 19975, Valverde 19996, 20037) The community standard – allegedly a national standard - can be established by courts without expert evidence – indeed, without any evidence at all. As critics have pointed out, the community standard test allows courts to apply their own subjective sexual morality, masquerading as a national consensus.
Further, although the courts have sometimes insisted that risk of harm must be proven, the Supreme Court has also admitted that the harm cannot always be proven. In Butler, for example, the Supreme Court observed that the perceived harm to society of degrading and dehumanizing material "is not susceptible of exact proof", but that "there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole." The Court concluded that "there is an appreciable risk of harm to society in the portrayal of such material." In Mara, the Supreme Court further held that the harm in question was "attitudinal harm" – a harm that is similarly not subject to strict proof.
As a result, courts can find that an act is indecent absent any actual proof that it presents a risk of harm to society. In the context of consensual sex between adults occurring within conditions of privacy at bathhouses and other establishments, there is simply no evidence of a risk of harm to society. Yet, the absence of such evidence does not preclude a finding of indecency under the current law.
The third provision of the Criminal Code that could theoretically be used against bathhouses is section 159, which creates a separate offence for anal sex. It states, in part:
159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Section 159 criminalizes all anal sex, unless it comes within one of its limited exemptions, the key one being ss.159(2)(b), which exempts an act engaged in private between "any two persons, each of whom is eighteen years of age or more, both of whom consent to the act."
Subsection 159(3)(a) makes this exemption unavailable "if it is engaged in in a public place or if more than two persons take part or are present." This limits the meaning of "in private" and means any anal sex that takes place in a bathhouse is criminal, and could theoretically result in imprisonment for 10 years. It also criminalizes anal sex with more than 2 persons present, regardless of where it takes place.
Section 159 has been struck down as unconstitutional by the Ontario Court of Appeal (8) and the Quebec Court of Appeal, (9) due to the unequal age of consent.
Egale strongly recommends that section 159 be repealed. There is simply no need for the Criminal Code to deal with anal sex any differently than any other sexual activity.
4. The Role of Bathhouses in Gay Culture
The fact that lesbian, gay and bisexual people are subjected to harassment, discrimination and violence because of who we have sex with means that part of our coming out process is looking deeply at our sexual desires and activities. We struggle with the societal homophobia that we have internalized. Finally, if we make it through that struggle, we recognize that our sexuality is not something immoral or evil, but rather is a healthy part of who we are.
It is that sex positive perspective which has led to the development of today's bathhouses.
Gay bathhouses serve a specifically sexual purpose. In a bathhouse, it is possible for people to simply be sexual with each other with no pretense of any other purpose. There is no courting and no expectation of anything to follow. There is mutual understanding among the participants.
Bathhouses are frequented by both closeted and openly gay or bisexual men. For those in the closet, bathhouses may be the only safe and discreet outlet for their sexual desires.
5. History of Gay Bathhouses in North America
Throughout the 19th and early 20th centuries all homosexual acts were illegal and considered degenerate and "crimes against nature" and therefore carried heavy legal penalties. In an ongoing effort to avoid arrest, and the subsequent public humiliation, homosexual men sought out each other in obscure, discreet "cruising areas."
As cities expanded during the 20th century, so too did the types of places where men could be anonymous and intimate with each other. The list of such meeting places, often totally unknown to the dominant culture surrounding them, included parks, back alleys, YMCA facilities, restrooms, certain movie houses, cheap hotel rooms, boarding houses, and bathhouses.
Historical and police records from the early 1900s reveal how some bathhouse owners attempted to curtail such activity by calling the police or hiring private security to patrol the establishment. There were also some bathhouse owners who realized a profit was to be made by essentially turning a blind eye to the activities, as long as the men engaged in such activities did so discreetly.
By the 1950s, exclusively gay bathhouses, often owned by gay businessmen, began to appear. Despite the ever-present threat of police raids, these establishments were generally allowed to operate as long as they remained discreet.
Following the decriminalization of homosexuality in Canada in 1969, gay bathhouses evolved from being discreet places known only to those "in the know," to the modern, fully-licensed, often openly gay-oriented, establishments that existed to serve the needs and desires of a growing gay community.
As HIV/AIDS entered the gay men's community in the 80s, many municipal and health authorities in the U.S. began a campaign to shut down bathhouses citing them as one of the primary sources of infection.
In Canada, however, it was recognized and understood that it was not the location in which one had sex that was at issue, but rather unsafe sexual practices. Canadian bathhouses, along with various gay bars and nightclubs, became valued partners with the various AIDS service organizations and other gay community organizations in the fight against HIV/AIDS.
Bathhouses continue to make safe sex literature freely available, and to distribute condoms and water-soluble lubricant as a matter of course to their patrons. Aside from the threat of the indecency laws, bathhouses provide a safe and discreet venue for sex without pretense.
6. Police Raids of Bathhouses
A series of raids by the Toronto Police Service from 1979-1981 resulted in several nights of rioting in Toronto in 1981 and marked a turning point in the Canadian LGBT rights movement. Following these raids and the political awakening that took place in their wake, over two decades went by with no raids on any gay bathhouse in Canada.
Bathhouse raids have had devastating effects on those charged, many of whom have been in the closet about their sexual orientation. For example, the raid on the Pisces Spa in Edmonton in May 1981 resulted in the suicide of one of the men charged as a found-in during that raid.
Following the years of tacit approval of gay bathhouses, on December 12, 2002 the Calgary Police Service decided to act on two anonymous complaints and, after a 3-month investigation into Goliath's Sauna-Tel, launched a raid against that establishment, charging 13 men as being found-ins and 5 men as keepers of a common bawdy-house.
One individual was charged as a found-in despite it being clear he was neither a patron nor an employee. He had merely stopped by Goliath's to return a video to a friend who worked at the coffee-bar at Goliath's, and stayed to have a coffee with his friend before going to work. No sexual activities take place at the coffee-bar, and he was not engaged in any sexual activity or anything that could be considered to be an "act of indecency". However, for merely being on site, and because he had no "lawful excuse" for being found in a common bawdy-house, he was charged.
Twelve of the thirteen men charged as "found-ins" opted for Alternative Measures. One man, Terry Haldane, refused to do so, and instead decided to launch a Charter challenge against the bawdy-house laws. After two years of dragging Mr. Haldane through the courts, the Crown decided not to proceed against him.
Egale worked closely with Mr. Haldane. For him, the period between December 12, 2002, when he was charged, and November 24, 2004, when his charges were stayed by the Crown, was a period marked by shock, shame, anger, depression, dread, resentment, worry, and anxiety. He never had the opportunity to stand in court and defend himself.
The damage to the relationship between Calgary's LGBT communities and the Calgary Police Service is immeasurable. The Calgary Police Service long enjoyed a reputation as one of Canada’s more "liberal" and "gay-positive" police services, a relationship built up over many years by gay-affirming initiatives like a liaison committee, community-specific recruiting drives, attendance at key community events such as Pride and the annual gay rodeo, and open lines of communication regarding LGBT-directed violence and domestic situations.
The Goliath's raid destroyed or severely compromised these advancements and reinforced the LGBT community's suspicion and fear towards the police.
The City of Calgary, the Calgary Police Service, and the local Board of Health were all aware of the sexual activities that took place at Goliath’s. It was openly advertised in local gay press. At no time did any civic officials indicate there was a problem with the type of establishment Goliath’s was.
The Goliath's case illustrates the questionable wisdom of the bawdy-house indecency laws.
Unfortunately, the Goliath's raid was not an isolated incident. The last few years have also seen raids at bathhouses in Toronto and Hamilton, and at gay sex shows in Toronto and Montreal.
In 1996, there was a raid of Remington's, a gay strip club in Toronto. Its owners were charged with running a common bawdy house and four customers were charged as found-ins.
In June 1999 there was a raid of the Bijou, a gay porn theatre in Toronto. Eight men were arrested and charged with indecent acts.
In 2003 there was a raid on Taboo, a gay bar in Montreal. 34 men were arrested for indecent acts.
In August 2004 there was a raid on Hamilton's Warehouse Spa and Bath. Two men were arrested for indecent acts.
The effects of these charges can be devastating. For being guilty of nothing more than present on the premises when the police raided, these people have been criminally charged and often had their identities exposed in the media. They faced financial penalties, social and professional stigma, and the possible loss of family, friends and colleagues.
Police raids are not restricted to gay bathhouses. In September 2000, the Pussy Palace, a special women's bathhouse night, was raided by the Toronto Police. Although the owners were only charged with liquor license violations, the police were clearly using the liquor license laws as a way of legally entering the premises and searching for evidence of acts of indecency.
Without a change to the law, the legitimacy of bathhouses across Canada remains in question.
Bathhouses have operated for years as legitimate businesses that pay taxes, have valid municipal permits, follow applicable labour laws, and are valued parts of the communities in which they operate. There is no compelling or reasonable justification to criminalize their owners, employees and patrons. They are simply not harming anyone.
7. Constitutional challenges to the Bawdy House Laws
Given the ways in which gay establishments continue to be targeted by the police under the bawdy house laws, it is only a matter of time until a constitutional challenge is launched. In December, 2004, Egale held a two day consultation towards that end with human rights lawyers and community leaders. Also invited were a bathhouse owner and leading activists fighting for the safety and protection of sex workers.
Any constitutional challenge will be based on violations of section 7 and section 15 of the Charter of Rights and Freedoms.
a. Section 7: Liberty and Security of the Person
Section 7 of the Charter states: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
One often-cited principle in relation to section 7 and the Charter more generally is “that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life." (10) This means that the Charter protects individuals from the values of others being imposed on them for no valid reason.
The bawdy house laws will be challenged as violating s.7 of the Charter because they interfere with liberty and security of the person in a manner that is not consistent with the principles of fundamental justice.
Liberty is implicated whenever people face jail sentences for reasons that are unjust. Liberty is also implicated when individual autonomy is unjustly curtailed. (11) The bawdy house laws do not respect individual autonomy, and instead seek to impose one person's morality on another. The bawdy house laws may also violate security of the person because of the psychological stress following arrest, as detailed above.
Violations of liberty and security of the person may be found to be unjust if they are arbitrary, vague or overly broad.
It is Egale's belief that the bawdy house laws are arbitrary in that there is no harm and no compelling reason to criminalize bathhouse owners, workers and patrons. Consensual sex between adults which takes place in private may be morally repugnant to some, but that is not a reasonable justification for criminalization. Criminalizing bathhouses merely imposes on one person the beliefs of another.
The bawdy house laws are also unconstitutionally vague. "Acts of indecency" is not defined and provides an inadequate standard for proper legal analysis. It also fails to provide adequate notice to those seeking to comply with the law.
Moreover, the bawdy house laws are overly broad: they capture a wide array of sexual activity with no connection to any discernible risk or harm to society.
b. Section 15: Equality
Section 15(1) of the Charter states: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age of mental or physical disability." The grounds of discrimination are open-ended, and the Supreme Court has unanimously and repeatedly said that sexual orientation is also a protected ground of discrimination, due to the historical disadvantage and prejudice faced by lesbian, gay and bisexual persons.
The bawdy house laws will be challenged as violating section 15 of the Charter because of the detrimental effect of these laws on gay, bisexual and lesbian persons as compared to heterosexuals, and the corresponding impact on our dignity.
Given the stigma surrounding homosexuality, community standards are inherently biased against lesbian, gay and bisexual persons. Judging sexual behaviour by such standards will inevitably result in adverse treatment. The targeting of gay bathhouses and other gay establishments bears that out.
This adverse effect on lesbian, gay and bisexual persons constitutes discrimination within the meaning of section 15.
There is no reasonable justification for the section 15 violation. There is no pressing and substantial objective and, even if there is one, there is no proportionality between the rights violation and the achievement of that objective.
The objective of the bawdy house laws is simply the promotion of a conservative, nineteenth century sexual morality. There is no harm caused by this consensual adult activity, either to the participants or to the community. There is, however, considerable harm caused to the dignity rights of gay men by the application of this law.
A successful challenge could have two results. Courts could strike down the provisions or could simply re-interpret them in a much more constrained and predictable fashion. However, such a reading down could still have the effect of criminalizing behavior where there is no established harm.
c. Parliament Should Repeal or Re-Write the Bawdy-House Laws
The bawdy-house laws are unnecessary, as there are other provisions in the Criminal Code that adequately protect the public. For example, there are laws prohibiting sexual assault and sex with minors as well as a host of others. There is no need to target activities that cause no harm.
In our view, Parliament should proactively review and repeal or re-write the bawdy house laws. Parliament need not and should not wait for individual litigants to challenge these unjust laws, but should instead take immediate action to remedy the situation and lift the cloud that hovers over these otherwise lawful establishments.
8. Recommendations
Egale believes that any prohibition of consensual sexual activities must be justified on specific and compelling grounds. In the context of sexual activities between consenting adults, and where there is a reasonable expectation of privacy, there will rarely be sufficient justification to warrant the imposition of criminalization of those activities.
Sexual activities should not be prohibited merely because they offend community standards or are considered immoral by others. Sexual activities should only be prohibited if there is a risk of harm. In the context of gay bathhouses, strip clubs and other similar establishments, there is no risk of harm.
Sections 159, 173, 197, 210, and 211 of the Criminal Code are remnants of Edwardian legislation, no longer in keeping with the realities of modern Canadian life.
We respectfully recommend the Subcommittee review the bawdy house laws present in the Criminal Code, including those targeting indecency, the definition of "public place" and the anal sex provision. We believe these provisions should be repealed or re-written so as not to criminalize activities which do no harm to the public.
Footnotes
1 R. v. Brodie (1962) 132 C.C.C. 161, at p.182
2 R. v. Butler [1992] 1 S.C.R. 452
3 R. v. Tremblay [1993] S.C.R. 932
4 R. v. Mara [1997] 2 S.C.R. 630
5 Cossman, Brenda et al. 1997. Bad Attitude/s on Trial: Feminism, Pornography and the Butler Decision (University of Toronto Press)
6 Valverde, Marianna . 1999. "The Harms of Sex and the Risk of Breasts: Obscenity and Indecency in Canadian Laws" Social and Legal Studies 8, no.2 (June): 181-98
7 Valverde, Marianna 2003 Law's Dream of a Common Knowledge (Princeton University Press)
8 R. v. Carmen M (1995), 23 O.R. (3d) 629 (Ont. C.A.)
9 R. v. Roy (1998), 161 D.L.R. (4th) 148 (Que. C.A.)
10 R. v. Morgentaler, [1988] 1 S.C.R. 30, at 166, Wilson J.
11 Wilson J. in Morgentaler