September 16, 2004
The Honourable Irwin Cotler
Minister of Justice
Attorney General of Canada
House of Commons
Ottawa ON K1A OA6
Dear Minister Cotler:
I am writing to you on behalf of the Sex Laws Committee, which is a committee of individuals and organizations committed to changing Canada’s archaic laws relating to sex and sexuality. Specifically, we call upon you, as Minister of Justice, to introduce amendments to the Criminal Code that would repeal the sections dealing with “indecent acts” (S. 173.(1)) and “common bawdy-houses” (S. 197.(1) – definition of “common bawdy-house”; S. 210 and S. 211). “Indecent act” is not defined and the “bawdy-house” provisions of the Criminal Code are Victorian-era laws that seek to legislate morality by criminalizing consenting sexual activity. In addition, the definition of “public place” (S. 150) is far too vague.
The most immediate incident that prompts this call for amendment of the Criminal Code is a raid conducted in Hamilton, Ontario on August 3, 2004 on the Warehouse, a gay bathhouse. Two men were charged with committing an indecent act by police during a raid that was conducted by a multi-agency task force to ostensibly check for bylaw infractions (health, safety, smoking, etc.). Witnesses to the raid have indicated that the police used unnecessary force in arresting the two men charged with indecency, and unnecessarily handcuffed them during the arrest. The men were allegedly required to remove the towels they were wearing and to be assisted with changing into their clothes by female officers involved with the raid.
The raid in Hamilton is just one of number of recent examples of the need to repeal vague and antiquated laws that criminalize consensual sexual activity. The allegations about the conduct of the police during the raid are reminiscent of a raid by Toronto police on the Pussy Palace (2000), a women’s bathhouse event in which male police officers observed women in various stages of undress. In that case, police laid “disorderly conduct” and other charges under liquor licence legislation. A court later found that the police had violated the women’s right to privacy.
Although bawdy-house charges have not been laid in the Hamilton case, such charges are usually laid after raids on bathhouses. And there is a long history of the indecent act section of the Criminal Code being used almost exclusively against gays engaging in consensual sexual activity. Calgary police used the bawdy-house laws to charge the owners and customers of Goliath’s bathhouse in Calgary in December 2002. Bawdy-house and indecent act charges were laid by Montreal police during a raid on Taboo, a gay strip club in Montreal in May 2003. In Toronto, police laid bawdy-house charges in a raid on Remington’s, a gay strip club (1996) and indecent act charges against men during raids on the Bijou, a gay porno bar (1999).
Consensual heterosexual sex is also targeted by police forces. Police in various Ontario cities periodically raid heterosexual body rub parlours and strip clubs. Private clubs for heterosexual swingers in Montreal have been raided and charges successfully prosecuted under the bawdy-house laws. The Quebec Court of Appeal has rendered conflicting judgments in two of those cases, finding in one that a sex club was a bawdy-house but ruling in another case that a sex club was not a bawdy-house. And Terri-Jean Bedford was found guilty of operating a bawdy-house in Thornhill following a 1994 police raid on her house, where paying customers engaged in consensual S-M, fetish and bondage fantasies.
None of the activities that resulted in charges and convictions in these various cases should be viewed by modern-day standards as being criminal activities requiring the full force of the police and criminal law. Laws first enacted more than a century ago when moral values were quite different than they are today must not continue to regulate morality, and to make criminals of persons engaging in consensual sexual activity. They are laws that are laden with moral judgements, used by police to lay charges in circumstances where there are no victims. In fact, the people harmed by the continued existence and use of these Criminal Code sections are those who are charged with offences. Such laws should have no place in an age when we are governed by the rights afforded in the Charter of Rights and Freedoms. We therefore call on you to bring in legislation to repeal these sections of the Criminal Code.
We look forward to receiving your response to our call that the indecent act and common bawdy- house provisions of the Criminal Code be repealed.
Richard L. Hudler
For the Sex Laws Committee