InQueeries

June 29, 2006

by Gilles Marchildon, Executive Director of Egale Canada

Age of consent: Inequality remains

Federal Justice Minister MP Vic Toews doesn’t think a lot about anal sex. But he really should.

The Justice Minister, in his rush to introduce legislation to raise the age of consent, completely ignored an opportunity to address one of the most glaring examples of inequality in Canada’s Criminal Code.

Bill C-22 was introduced in the House of Commons on June 22, the day before Parliament adjourned for the Summer. The Bill proposes to raise the age of consent for sexual activity from 14 to 16.

The main purpose of the law is supposedly to protect young people from sexual predators. It’s a laudable goal but laws already exist to protect 14 and 15 year olds from sexual exploitation. Raising the age of consent won’t provide more protection - but empowering youth with information and providing better enforcement could do this.

Raising the age of consent would criminalize youth sexuality and might place a “chill” on sexual education provided to teens. After all, some agencies or schools might be reluctant to give out information to youth if they aren’t legally allowed to have sex.

By the same token, youth who aren’t old enough to have sexual relations, according to the new legislation, would likely refrain from seeking out information and advice. This will just drive sex into a “closet” and lead to teens being less informed.

The more glaring oversight of Bill C-22, however, is that it leaves on the books an unequal age of consent for anal sex. It is the ONE and ONLY sexual activity for which the age of consent is still 18 years of age. For those keeners among readers, you can look it up - it’s section 159 of the Criminal Code.

Instead of allowing anal sex to be regulated in the same way as other sexual behaviours, there’s a specific section that criminalizes both the younger and the older person participating. Furthermore, it makes anal sex criminal when more than two people are present and imposes a harsher penalty than with other forms of sexual activity.

As Justice Department lawyers have pointed out to their boss, the unequal treatment of anal sex has been found unconstitutional by the Ontario Court of Appeal, the Quebec Court of Appeal, the B.C. Court of Appeal, the Alberta Court of Queen’s Bench and the Federal Court of Canada.

Yet Vic Toews is leaving it in the Criminal Code. Why?

The most likely answer is that the Harper government does not care about equality. It had a chance to fix something in the Criminal Code and it chose to ignore the problem.

Anal sex laws have historically been used to criminalize gay and bisexual men. There’s no reason in the world to single out anal sex for differential treatment. Doing so only reinforces the stigma surrounding gay male sex.

Hopefully, opposition MPs will bring this forward when Bill C-22 is reviewed by parliamentary committee in the Fall. The Bill should be amended to equalize the age of consent for all sexual activity.

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Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada