By Forrest Picher
Implicitly, gay men are protected under the Canadian Charter of Rights and Freedoms and supposedly enjoy the same rights as heterosexual people.1 Yet, there remains a legal discrimination against homosexual sex: homosexuals cannot engage in group sex, while heterosexuals can. Writing in 2014, Thomas Hooper explains “section 159 of the Criminal Code codifies mononormativity and maintains the legacy of gross indecency, as anal sex is only legal in Canada if it is ‘engaged in, in private, between… any two persons.’”2 In this way, any group sex between homosexual men, for example, is technically illegal in the Canadian Criminal Code and police are legally justified to raid places in which such activity occurs. And they do. In Calgary in 2002, for example, the police raided Goliath’s bathhouse, an establishment that was used by gay men in the community as a meeting place for sex.3 This raid demonstrates that the legal ambiguities that led to the 1981 bathhouse raids in Toronto, as I will discuss, continue to be problematic. In fact, one bartender in Calgary stated after the 2002 raid: “This is so reminiscent of 1981 in Toronto, it’s sickening.”4
On February 5, 1981, 200 plainclothes police officers raided four Toronto bathhouses leading to the largest mass arrest since the October Crisis ten years earlier. In total, twenty men were charged with “keeping a common bawdy house”, 289 were charged with being found-ins and two were charged with “buggery”.5 Men speaking out in the aftermath of the raids described severe misconduct on the part of the police. Some reported being photographed naked, others said police took down their employers’ names and phone numbers and several men stated that police had referred to them as “queers, faggots and fairies”.6 Moreover, one man reported that several officers used sledgehammers and crowbars with abandon, smashing windows and breaking down doors.7 This last fact is corroborated by the $38,000 in damages reported by the four bathhouses after the raid (nearly $100,000 in 2015 dollars).8 In contrast, the police report stated that the officers behaved in a “professional manner.”9
Because the legal code was (and still is) unclear with concern to the sexual rights of gay men and also with concern to what kind of a space a bathhouse actually is – for instance, is a bathhouse a private or a public space? – the Toronto police department was able to define such things itself and did so in such a way as to legally justify the raid.
Ambiguity in the Bedrooms of the Nation
These ambiguities are largely the artefact of the original decriminalization of homosexual sex in Canada. On December 21, 1967, then Minister of Justice, Pierre Trudeau, was speaking to reporters about Bill C-150, the Omnibus bill that would decriminalize homosexual acts in 1969. Trudeau, in his well-measured diction, said “There’s no place for the state in the bedrooms of the nation”.10 He continued: “What’s done in private between adults doesn’t concern the criminal code… When it becomes public this is a different matter.”11 Here it is important to go into detail of the two legal ambiguities espoused in Trudeau’s statements and in Bill C-150. The first ambiguity is that while Bill C-150 decriminalized homosexual sex, it did not decriminalize all homosexual sex. Indeed, the bill only decriminalized that sex which would be most similar to the heteronormative and mainstream accepted form of sex: in a private home between two people. The second ambiguity is that the bill did not define what was private and what was public. So while homosexual acts were decriminalized in private, there was no specification on what “private” actually was. The bill left the definition of private to interpretation, which lead to a fundamental issue with the institution of the bathhouse: it was situated in a swath of legal grayness. While a bathhouse was in some ways a public space – any man could go, meet people and interact either sexually or not sexually – it was also a private space. The bathhouse had private rooms that men could rent. Rooms whose doors police officers kicked open to make many of the arrests during the raid. Thus, with no legal definition of whether a bathhouse was a private or a public space, the definition was left to the police who decided a bathhouse was an unambiguously public space. In defining the bathhouses this way, the police gave itself a mandate to conduct the raid.
A third legal ambiguity, not implicit in Trudeau’s statements, is that of a “bawdy house.” A bawdy house was the legal term used to prosecute the men arrested in the bathhouse raids. But what is a bawdy house? Originally, in 1892, the concept was intended as a legalistic term for a brothel. This was amended in 1917 however to include “the practice of acts of indecency”, an (again) ambiguous legal category under which homosexuality was applied.12 By defining homosexual sex as an “act of indecency,” the Toronto police department was able to apply the ambiguous category of a bawdy house to the bathhouses.
Bawdy House as Discrimination
What is fundamental to this discussion is that any so-called indecent acts that heterosexuals might do would not make a location into a bawdy house. Also in 1981, the Toronto Metro Police in plainclothes infiltrated one of Mervyn Lawrence Mason’s monthly house-parties in which heterosexual group sex had taken place. Mason was charged by the police with keeping a common bawdy-house, the same charge that was used in the bathhouse raids. However, the judge ruled in Mason’s favour, stating “it is my considered opinion that no one would seriously contend that a sexual act, between consenting adults of the opposite sex [my emphasis], in a private home, could be considered grossly indecent.”13 The judge continued, stating “an act of gross indency [sic] as contemplated by the Code, includes an act between homosexuals whether done in private or in public. Section 518 was designed to protect homosexuals, so long as they performed their acts in private and not in the presence of a third party.”14 This decision only a month after the bathhouse raids demonstrates the ways in which homosexual sex and heterosexual sex are fundamentally legally different according to Canadian law. Heterosexuals can have group sex. Homosexuals cannot.
These legal ambiguities, while rarely used, can still provide legal justification for discrimination against homosexual establishments. It is still technically illegal for three gay men to have sex together. Similarly, gay establishments such as bathhouses can still be targeted by police due to these discriminatory laws surrounding group sex and the legal ambiguity of a “bawdy house”. In further pursuing equal rights in Canada we must address these discrepancies. If we are to realize Pierre Trudeau’s “just society” we must first confront Trudeau’s own legal legacy, starting with the ambiguities of Bill C-150.
Forrest Picher is a recent graduate of history from McGill University. His research focuses primarily in Canadian history, touching on such subjects as environmental history, indigenous history and the history of sexuality.
- Thomas Hooper, “’More Than Two is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code, 1981-82,” Journal of Canadian Studies 48, no.1 (Winter 2014): 53-81.
- Christopher Gudgeon, The Naked Truth: The Untold Story of Sex in Canada (Vancouver: Greystone Books, 2003).
- Bruce MacDougall, Queer Judgments: Homosexuality, Expression, and the Courts in Canada (Toronto: University of Toronto Press, 2000).
- A Simple Matter of Justice: Theorizing Lesbian and Gay Politics, edited by Angelia R. Wilson (London: Cassell, 1995).
- Stuart Chambers, “Pierre Elliott Trudeau and Bill C-150: A Rational Approach to Homosexual Acts, 1968-69”, Journal of Homosexuality 57, no.2 (2010): 249-266.
10 “Omnibus Bill: ‘There’s no place for the state in the bedrooms of the nation’”, CBC Archives, December 21, 1967 http://www.cbc.ca/player/Digital+Archives/Politics/Rights+and+Freedoms/Trudeau%27s+Omnibus+Bill+of+1969/ID/1815590962/ (accessed June 2, 2015).
12 Thomas Hooper, “’More Than Two is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code, 1981-82,” Journal of Canadian Studies 48, no.1 (Winter 2014): 69; Joseph Couture, “Swingers, beware,” National Post, March 9, 2005.