David Tanovich in 'Criminalizing Sex At The Margins' 74
Criminal Reports (6th) (2010) 86-95 [
PDF] comments that -
Legal constructions of sexuality often abnegate the ineffable and pluralistic nature of pleasure. By dismissing the aberrant as violence, the law strips the experience of its humanity and social worth. In understanding S/M sex, we must first hold back this reductive strategy and acknowledge how and why S/M sex may invoke certain emotive responses. S/M undermines desire’s presumed autonomy, shows the constructed nature of sexuality, and disputes the romantic myth of sex as natural and spontaneous. What may be unnerving about S/M is its unabashed cynicism. S/M makes clear—it is indeed central to its praxis—that power and social presumptions govern intimate relationships. The designation of S/M sex as only violence speaks to a discomfort with this bluntness. The criminalization of S/M pleasure may underscore the threat of this honesty.
Tanovich notes that -
Notwithstanding Pierre Trudeau’s famous quote from 1967 that the "state has no business in the bedrooms of the nation", adults who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment. This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A. (J.).
For example
While tremendous strides have been made in addressing sexual orientation discrimination in Canada, including the recognition and celebration of same-sex marriage, gay men still face the threat of being arrested for having anal sex. While consensual sex between men was decriminalized in 1969 with the repeal of our sodomy law,4 anal intercourse with an individual who is not their married spouse or who is under the age of eighteen or which occurs in the presence of more than two people remains a crime in our Criminal Code. In other words, if three men are in a bedroom during which anal sex is occurring, they are, according to section 159(3)(a), committing a crime. While it is true that section 159 was declared unconstitutional in 1995 in Ontario based on age discrimination, not every province has ruled on the issue. In Alberta, for example, prosecutors were not conceding the unconstitutionality of section 159 as late as 2002. Moreover, even after 1995 in Ontario, the police continued to charge individuals with anal intercourse.
Perhaps most significantly, the very fact that the offence remains in the Code serves to further stigmize and marginalize the gay community in Canada. One individual who was unjustly arrested for anal intercourse brought a civil action seeking to force Parliament to remove section 159 from the Code in 2001. His action failed, as the Court held that the government could not be held liable in tort for failing to amend a statute. And so, homosexuality remains, at the very least, symbolically criminalized in Canada.
