06/21/2019 16:40 EDT | Updated 06/21/2019 16:57 EDT

Parts Of Canada's Criminal Code Criminalize Homosexuality To This Day: Activists

Offences like “immoral theatrical performance” remain on the books, despite Trudeau’s new legislation.

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Ron Rosenes at the University of Toronto June 25, 2014.

TORONTO — Thirty-eight years after Ron Rosenes was arrested at a popular Toronto bathhouse, and tried and convicted for being a gay man, there is still no way for him to scrub his name from police and court records.

That’s because what police charged Rosenes and hundreds of other men with that winter night in 1981 — “found-ins in a common bawdy-house” — remained a criminal offence in Canada until Thursday, when the senate passed omnibus Bill C-75.

The legislation, awaiting royal assent, includes repealing bawdy-house (in other words, brothel) laws, as well as anal intercourse and vagrancy sections in the Criminal Code, several years after apologies from police and the federal government for the city-wide bathhouse crackdown called “Operation Soap,” and other instances of discrimination.  

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Police arrest patrons at a Toronto bathhouse as part of citywide raids Feb. 5, 1981. 

But offences that police have historically used to persecute members of the LGBTQ community — indecent acts, obscenity, nudity and immoral theatrical performances — remain on the books.

Rosenes, a community health advocate, chair of the Canadian HIV/AIDS Legal Network, and Order of Canada recipient, hopes the changes within Bill C-75 will mean his conviction can be expunged, and that he and others in the LGBTQ comnunity can find closure.

“It was extremely shocking and traumatizing,” Rosenes told HuffPost Canada of the police raid at the Roman Sauna Baths on Feb. 5, 1981. He also shared his story before a Senate committee April 2018.

Gary Hershorn/The Canadian Press
A man with blood streaming down his face scuffles with police outside the Ontario Legislature in Toronto on Feb. 6, 1981. About 1000 gay rights demonstrators marched there in protest of the arrests of 253 men in four city steam baths the night before.

“I was a young, gay man, privileged, well-educated, who’d never had an encounter with the police. I was very comfortable with my sexual identity, but that took a hit. For the first time in my life, I felt the sting of homophobia, the sting of imposed societal norms that I had to come to terms with as a very young man.”

Rosenes was alone in a room when police officers stormed and ransacked the building on Bay Street, “brutally” rounding up the men inside, calling them homophobic slurs and forcing them to stand outside to be arrested and charged, he said. During his own trial, Rosenes was called to the stand. He told the truth, was fined $35, and given a suspended sentence.

Although Rosenes doesn’t have a criminal record, his experience is documented with the Toronto Police Service and in a Scarborough courthouse. He said he’s applied for and been denied expungement through legislation pushed through by Prime Minister Justin Trudeau’s government in 2017, coinciding with the apologies to the LGTBQ community.

Gary Kinsman is a queer activist, author and Laurentian University professor. He pushed for senate and House committees to improve their LBGTQ2 legislation, most recently relating to expungement and criminal code reforms.

The legislation, long criticized for being too narrow, erases convictions of anal intercourse, gross indeceny, and buggery — “a tiny number of the offences that have been used to criminalize homosexual activity,” said Gary Kinsman, an activist, author and Laurentian University professor. The onus is placed on the individual, or their family, to gather the correct documents and apply, making it “incredibly inadequate,” he said.

A year into the program, the Parole Board of Canada said it has received 17 applications and ordered six expungements.

When asked why other offences weren’t repealed in Bill C-75, such as indecent acts, which Kinsman and other activists pushed for, the Department of Justice did not provide an answer. A spokesperson said it repealed vagrancy and anal intercourse because courts have ruled them unconstitutional.

Watch: Trudeau makes an apology to the LGBTQ community. Story continues below.


Public Safety Canada did not respond to HuffPost as to whether it would consider making bawdy-house charges expungeable.

LGBTQ concerns a “footnote”

York University Prof. Tom Hooper said that Trudeau has taken a similar approach as his father — former prime minister Pierre Elliott Trudeau — when it came to LGBTQ issues.

“He comes across as this guy who is going to listen and is going to empathize but instead he turns around and does it on his own terms and in ways that seem to politically benefit him, instead of doing things that are meaningful and will stand the test of time,” the historian said, referring to the Trudeau government’s narrow expungement legislation and Bill C-75 that didn’t repeal all offences that criminalize homosexuality.

Bill C-75 also includes other unrelated changes to the Criminal Code, the Youth Criminal Justice Act and other laws, that overshadow the LGBTQ community’s victories, he said.

“This really should be a big moment, when the statements in the House and Senate reflect the importance of repealing these offences,” Hooper said. “Instead, they’re too busy talking about everything else. It’s a shame. Our concerns were put as a footnote in this gigantic bill.” 

Chuck Mitchell/The Canadian Press
Pierre Elliott Trudeau raises his arms in the traditional victory sign after winning the leadership of the Liberal party of Canada In Ottawa April 6, 1968, before becoming prime minister.

 In 1967, Pierre Trudeau, acting as justice minister, uttered the famous line “There’s no place for the state in the bedrooms of the nation.” A week before, the Globe and Mail had published an editorial that first used the phrase, saying “(The state) has no right or duty to creep into the bedrooms of the nation.”

“That’s not Trudeau’s quote,” Hooper said. “He was simply tapping into a bigger conversation happening in Canadian media.”

Two years later, Pierre Trudeau successfully enacted legislation that he said “decriminalized” homosexuality, but in reality he had merely amended a part of the Criminal Code that was low-hanging fruit, said Hooper. “The state didn’t have the resources to police in the bedrooms of the nation.”

Gay sex remained illegal elsewhere, including in cars and bathhouses and criminal charges against the LGBTQ community escalated in the decades following, Hooper said.

Pierre Trudeau’s insistence that homosexuality had been decriminalized gave Rosenes a false sense of security in the 1980s, he said, as he explored his sexuality in Toronto bathhouses. He now feels wary of the younger Trudeau’s legislation.

“Today I continue to worry that the police, for example, will use existing laws that will never come off the books to criminalize us,” Rosenes said.

The fight for equality, he said, is by no means over.

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