Minister of Justice and Attorney General David Lametti rises during Question Period in Ottawa on Sept. 29.Adrian Wyld/The Canadian Press
Indecency laws, including a ban on “immoral theatrical performances,” are set to be reviewed by the federal government in an update of sections of the Criminal Code designed to protect the country’s morals.
Justice Minister David Lametti is also planning to launch a consultation this month on modernizing a law that makes it a criminal offence for someone with HIV not to disclose it to a sexual partner.
Advocates say that outdated laws, including ones on indecency and HIV disclosure, unfairly target the LGBTQ community.
“There’s lots of laws that are decades out of date,” said Fae Johnstone, a LGBTQ campaigner and executive director of Wisdom2action. “Generally speaking it’s good to have a Criminal Code that reflects our values.”
People who keep an HIV-positive diagnosis a secret before having sex, when it poses “a realistic possibility” of transmitting the virus, face an aggravated sexual assault charge with a maximum penalty of life imprisonment. Those convicted are registered as sex offenders.
There have been more than 200 prosecutions in Canada.
Lawyers representing the LGBTQ community say the law – introduced following a ruling by the Supreme Court of Canada in 1998 – is now outdated, with the advent of drugs reducing the chance of HIV transmission and contracting the virus.
Federal officials are also embarking on a trawl through the Criminal Code to examine indecency laws that members of the LGBTQ community warn are being used by the police to target them, or which appear morally outdated.
They include a crime prohibiting the sending through the postal service of “anything that is obscene, indecent, immoral or scurrilous” and a law making it illegal to put on an “immoral, indecent or obscene performance or entertainment.”
Actors and other types of performers, including dancers, as well as theatre managers and artists’ agents, are liable to criminal prosecution under the law prohibiting “an immoral, indecent or obscene performance, entertainment or representation in a theatre.”
Howard Brenton’s play The Romans in Britain, which contains a male rape scene, is among the artistic works that could risk prosecution under Canada’s current indecency laws. The play prompted a challenge by a prominent morality campaigner under obscenity laws when it was first staged in London, England, in the early 1980s.
The federal government’s review is also likely to look at crimes of nudity, and immoral and obscene material on the statute books.
Mr. Lametti said the government plans to approach the matter “carefully and respectfully” and consult “all affected groups,” including those with differing views.
He said he was “aware that many community partners, advocates and experts feel that indecency-based offences and their interpretation by the justice system may still pose a risk to Canadians.
“While indecency-based offences and their interpretation have evolved over time, their origins lie in historical notions of moral behaviour and efforts to criminally regulate what some consider non-conforming sexual and related behaviour,” he said.
“Through the advocacy of these groups and others, I have understood the concerns that terms like ‘indecency’ have the potential to cause harm given their link to the persecution of vulnerable populations in Canada.”
The government has repealed a number of crimes now considered outdated including on holding a duel and “keeping a bawdy-house.”
Marcus McCann, a human-rights lawyer at Millard and Co., said laws governing indecent acts are still being used by the police to target members of the LGBTQ community, including people meeting in parked cars in secluded places.
He said updating the Criminal Code would mean that in the future if the “pendulum swings back” and leads to a curbing of personal freedoms, the law could not be applied to target specific groups.
“It is a good idea for Parliament to update the Criminal Code in this way, even for provisions that are not commonly being used,” he said.
LGBTQ campaigners have been calling on the government to add a section to the Criminal Code to ensure that prosecution for non-disclosure of HIV to a partner should be reserved – as in England and Wales – for people who deliberately go out to infect someone with the virus and succeed in doing it. They say the current law in Canada has stigmatized people who have HIV and led to blackmail by former partners. They say it has also discouraged people from getting tested.
They argue that since the disclosure law was introduced, medication has been developed that can reduce a person’s viral load to such a degree that they may not pose a risk of transmitting HIV to a partner. Other drugs can prevent people from contracting the virus through sex.
“Canada’s HIV non-disclosure laws are out of step with the science on HIV transmission and cause immeasurable harm to people living with HIV. Under the current law, prosecutions can occur even where there was no intent to transmit and, indeed, no transmission actually occurred,” said India Annamanthadoo, a policy analyst at the HIV Legal Network.