culture A Look Back At Toronto’s Gross Indecency Laws

Prime Minister Justin Trudeau wants to pardon a man deemed a sex offender for consensual gay sex. Many similar cases exist, buried deep in our city's history.

Let’s say you want to organize a gay sex orgy in Toronto. You can’t host it at home—your roommates, partner, or parents probably wouldn’t appreciate the noise—so you decide on a gay bathhouse for convenience’s sake. You let everyone involved know, and set a time for your gay sex orgy. Everything is copacetic, right?

Inspired by the case of Everett George Klippert, who was deemed a sex offender for participating in consensual gay sex acts, former Prime Minister Pierre Trudeau famously said: “There’s no place for the state in the bedrooms of the nation.” This and amendments to the Criminal Code of Canada were lauded as a movement to decriminalize homosexual sex in Canada. Today, his son, Prime Minister Justin Trudeau, is calling to posthumously pardon Klippert of his charges.

But the kind of sex allowed under purview of the law are as narrow as Canada’s sex laws have always been broad. In fact, vague references to indecent acts still live in the Criminal Code today.

With so much left up to the discretion of police forces and the judicial system, we look back at Toronto’s history with gross indecency laws—an exploration that proves our city has not always been kind to sexual outlaws.

Prior to Pierre Trudeau’s amendments, sexual legislation was a direct import from British colonial rule. Up until 1892, Canada aped Britain’s sodomy or buggery laws that, ever unhelpful, considered the crime so grave as to be unnamable and indefinable. Convictions for consensual sex between adult males were rare, as “sodomites” needed to be literally caught with their pants down.

After new “gross indecency” laws were written into British legislation, they were imported almost word for word by a young minister of justice to Sir John A. MacDonald, and eventual fourth prime minister of Canada, Sir John Thompson. At the time, members of Parliament admitted that the vagueness of the bill “might lead to consequences that he [Thompson] does not intend. Thompson responded: “I think it is impossible to define them any better, for the reason that the offences which are aimed at are so various. […] I think it is better to leave it in this form.” He pointed out, rather unhelpfully, that they were no more vague than their English origins.

But the rationale behind these indecency laws was to make a mockery of gay men, explains queer historian Tom Hooper. “It was never designed to populate prisons, it was never designed to gather fines. It was designed to make people an object of scorn, humiliation, and shame so that you can control society through your moral values,” he says.

Hooper’s work explores the infamous 1981 Toronto gay bathhouse raids and community reaction to the Metropolitan Toronto Police’s rounding up of more than 300 men in a single night. While Trudeau’s amendment partially decriminalized homosexual sex, it excluded acts not “committed in private if it is committed in a public place, or if more than two persons take part or are present,” making the raids technically legal. Owners of the bathhouses were also charged under common bawdy house laws, giving police room to maneuver their dubiously titled “Operation Soap.”

The 1981 Toronto bathhouse raids may be the most widely known, but are far from the only time the full force of the law was brought down on members of the gay community—including the 1978 Toronto Barracks bathhouse raids. One of the men arrested there was teacher Don Franco, who sought legal recourse and brought the issue further to the forefront.

“In the weeks after Franco was arrested in that raid, a staff sergeant named Gary Donovan called his school board and notified the school board that he had been charged,” Hooper says. “The police force disassociated themselves from this incident. It was not standard practice to do this, but it was nonetheless seen as a violation of their right to privacy.”

A defence fund that was created after the Barracks raid became the Right To Privacy Committee (RTPC), a legal aid organization that kept watch on the courts, offering resources to those charged under Canada’s “gross indecency” and “indecent acts” laws. After Franco attached himself to the RTPC, the police found another way to target him in his own home.

In June 1979, Franco put an ad in the Body Politic, a gay magazine, advertising for partners to make use of sadism and masochism paraphernalia in his apartment. Undercover agents from the Metropolitan Police responded to the ad and showed up to his house. When they saw Franco’s S&M “dungeon,” they arrested him and charged him with being a keeper of a common bawdy house in his own home. “The reason he was acquitted was not because the judge bought [his argument]. He was acquitted because only one police officer showed up to his apartment, so technically there were only two people involved,” says Hooper. The judge pointed out in the acquittal that “the acts committed by the accused are not only indecent, but grossly indecent. The Canadian community will not tolerate them.”

And there were plenty of other cases, Hooper says. For instance, 27 men were arrested for gross indecency at the Orillia opera house in 1983. Queer historian Hamish Copley also examined the case of Patrick Kelly and Samuel Moore, likely the first men in Canada convicted of homosexual sex between two consenting adults when they were arrested in Windsor in 1842—charged under Canada’s colonial sodomy laws and placed in the newly built Kingston Penitentiary.

Hooper is glad for the Klippert pardon, which has brought the case back into public consciousness. But that single pardon won’t erase the charges against Toronto’s victims of the law. “The bath raid guys…there’s still enough of them around that at least if you extended a pardon to them or to some of the other people who’ve been charged with gross indecency, maybe they’d be alive to see it, and they’d be able to take a bit of peace from that,” Hooper says.

“Our community has been sending a clear message to the federal government since our community became a political community in 1971 when we marched to Parliament Hill,” he adds. “We sent a list of demands called ‘We Demand,’ and among those demands was to remove gross indecency and any kind of allusion to indecency from the Criminal Code.”

As it stands legislation that allowed Toronto’s numerous bathhouse raids survives in our bawdy house laws, as do references to indecency in the Code. The legal and punitive action around Klippert’s case is one of many injustices against homosexual men in Canada’s history. But changes are still yet to be made regarding broad and potentially discriminatory legislation that fails to consider sex outside of the scope of two people completely alone in a private bedroom.

Maybe you ought to rethink that orgy.