section 159(1)

INTRODUCTION AND BRIEF DESCRIPTION

Engaging in anal intercourse is a criminal offence punishable by imprisonment in Canada.

SECTION WORDING

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.

EXPLANATION

The Criminal Code of Canada is a federal statute that outlines the criminal laws applicable to Canadians. Section 159(1) of the Criminal Code of Canada pertains to anal intercourse. According to this section, any person who engages in an act of anal intercourse can be charged with an indictable offence and can be liable for imprisonment for a maximum of ten years. The actual act of anal intercourse itself is not illegal per se, as long as it is consensual, legal, and conducted between adults. However, section 159(1) specifies that anal intercourse is illegal unless it is between a husband and wife or heterosexual partners. This means that any form of anal intercourse between same-sex partners is illegal under Canadian law. This section has been a subject of controversy in recent times, as it is seen as discriminatory against the LGBTQ+ community. The Criminal Code of Canada has been amended on many occasions since it was passed in 1892, and several revisions have been proposed to remove these discriminatory sections. In conclusion, Section 159(1) of the Criminal Code of Canada criminalizes anal intercourse between same-sex partners unless it is between a husband and wife or heterosexual partners. The section has been a subject of controversy and debate since it discriminates against the LGBTQ+ community, and many calls have been made to revise or remove this section in line with modern societal views.

COMMENTARY

Section 159(1) of the Criminal Code of Canada has been a contentious issue since its adoption in 1892, when it was established that any form of anal sex, regardless of the gender or sexual orientation of the parties involved, was a criminal offense. The section remained unchanged until 1969, when the amendment of the Criminal Code decriminalized certain types of consensual sexual activities between same-sex partners, such as kissing and fondling. However, the prohibition on anal sex between consenting adults remained in place, and it was only in 1985 that the maximum penalty for this offense was revised from life imprisonment to 10 years. The continued existence of section 159(1) has been heavily criticized for a variety of reasons, most notably on the basis that it is discriminatory against LGBT+ individuals, as it selectively targets sexual acts that are more commonly associated with same-sex relationships. This perspective is supported by the fact that the existence of section 159(1) has been used to justify prejudicial treatment towards LGBT+ individuals in Canada, such as in the 1995 case of Egan v. Canada, where the Supreme Court of Canada upheld the exclusion of same-sex couples from receiving spousal benefits under the Old Age Security Act, citing the existence of section 159(1) as evidence of the illegitimacy of same-sex relationships. Another critique of section 159(1) is that it is archaic and out-of-touch with contemporary social mores. The prohibition on anal sex dates back to a time when attitudes towards sexual behavior, particularly those outside of traditional heterosexual relationships, were much more conservative and puritanical than they are today. It is arguable that such attitudes bear little relevance to modern society and that the continued existence of section 159(1) is a reflection of a legal system that is unwilling or unable to keep pace with shifting values and beliefs. Despite these criticisms, section 159(1) remains in force today, and any individual caught engaging in anal sex in Canada risks being charged with an indictable offense punishable by up to ten years in prison. This begs the question of why the section has not been repealed or amended to reflect the changing societal attitudes towards sexual orientation and gender identity. One possible explanation is that the issue is seen as a politically sensitive one, with debates around sexual morality and LGBT+ rights continuing to be highly contentious among the Canadian public and within its legislative bodies. In conclusion, section 159(1) of the Criminal Code of Canada is a highly controversial issue that has been the subject of intense debate and criticism for decades. The penalization of anal sex between consenting adults has been variously interpreted as discriminatory, out-of-touch with contemporary values, and politically sensitive, and it remains to be seen whether legislative action will be taken to address these concerns in the near future.

STRATEGY

The criminalization of anal intercourse under section 159(1) of the Criminal Code of Canada is a controversial provision that has been subject to criticism and legal challenges. Some strategic considerations when dealing with this section of the Criminal Code include understanding its history, the current legal challenges, and its potential impact on different groups. One of the historical issues surrounding section 159(1) is its origin in laws that were meant to discriminate against LGBTQ+ individuals. The provision was introduced in 1892 as part of the Criminal Law Amendment Act, which was intended to criminalize consensual sexual activities between men. The law was later broadened to include acts between men and women, but it remains problematic due to its discriminatory origins. This history may be relevant to strategic considerations when defending clients who have been charged with an offence under section 159(1). It may be possible to argue that the law is unconstitutional due to its discriminatory roots. Another consideration when dealing with section 159(1) is the potential impact it may have on marginalized communities, such as LGBTQ+ individuals and sex workers. Criminalization of sex work and consensual sexual activities can lead to stigma and discrimination against these communities, which can have serious consequences, such as reduced access to healthcare and social services. Additionally, this provision may increase the risk of harassment and abuse by law enforcement officials against marginalized communities. In terms of strategies that could be employed, one approach may be to challenge the constitutionality of section 159(1). This has been attempted before in R. v. Smith (2014), in which the Ontario Court of Appeal struck down the provision as unconstitutional in relation to activities between consenting adults. However, this decision was later overturned by the Supreme Court of Canada, which ruled that the provision was constitutional. Despite this setback, it may still be possible to argue that section 159(1) violates the Charter of Rights and Freedoms, particularly with respect to discrimination and equality rights. Another strategy that could be employed is to advocate for a repeal or amendment of section 159(1). This could involve lobbying politicians, engaging in public education campaigns, or working with advocacy groups. Such efforts may be more likely to succeed if they are grounded in evidence-based research and focus on the harm that this provision causes to marginalized communities. In conclusion, section 159(1) of the Criminal Code of Canada is a provision that raises several strategic considerations for lawyers and advocates working in the criminal justice system. While there are legal challenges and advocacy efforts underway to repeal or amend this provision, it remains a contentious issue that requires ongoing attention and action. It is important to prioritize the rights and well-being of marginalized communities when developing strategies to address this provision and fight against its harmful effects.