Looking over the political debates of the 19th century, it’s hard not to conclude that Canada’s laws specifying the death penalty for homosexuality died with a whimper instead of a bang.
As I mentioned in a previous article, no one has ever found a case in Canada that ended in execution for a consensual homosexual act. Thus, when the legal reforms came in, they were doing away with a law that was already rarely – if ever – enforced.
These reforms came as part of a package — they represented one small section of a much larger overhaul of the legal system.
The Enlightenment had changed people’s opinions on how laws should work. This plus the success of reforms to the prison system in the last few decades meant that Canadians began to seriously question whether it was necessary to have 200 crimes on the books punishable by death.
For these reasons, the number of crimes punishable by death was whittled down to the smallest handful – murder, treason, and rape – while all other crimes were assigned simple prison sentences.
(These three things would remain punishable by death well into the 20th century — rape until 1954, murder until 1976, and treason until 1988.)
“Sodomy” was just one on a list of dozens crimes that ceased to be punishable by death. Interestingly, since “sodomy” covered same-sex rape as well as consensual acts, the maximum punishment for opposite-sex rape (death) was actually greater than for same-sex rape (prison).
Nova Scotia was the first future Canadian province to put an end to its death penalty for homosexuality, perhaps because it was the first to achieve democracy (it had reached this point two years before, in 1848). This meant that Nova Scotia actually abolished capital punishment for “sodomy” before Great Britain. Sadly, Nova Scotia had to briefly bring back the death penalty when it joined Canada, which still had the death penalty on the books.
Canada’s capital penalty for “sodomy” lingered on another two years after Confederation, when – like Nova Scotia – it went over all its laws and rolled back the death sentence for dozens of crimes. In 1869, the Dominion of Canada finally put an end to capital punishment for “sodomy” – six years after Great Britain, and decades after most parts of the United States.
The “worst of crimes”?
What’s astonishing to a modern reader is how the decision to end the death penalty for homosexuality in 1869 provoked nearly no debate whatsoever in the Canadian parliament.
The reform bill lightening the penalty for a large number of crimes came up for debate seven times – five in the House of Commons, and twice in the Senate. While other aspects of the bill were quite controversial, not one Member of Parliament or Senator ever spoke a word against ending the death sentence for “sodomy.” Far more important for them were provisions to allow whipping as a punishment, and whether or not rape should also be on the list of crimes with reduced penalties.
While “sodomy” was never mentioned, the things MPs and Senators said about the bill do shed some light on why the death penalty was abolished. Here are some of the reasons political leaders gave for wanting to reduce the number of crimes that merited the death penalty or whipping:
- Prime Minister John A. MacDonald said that the purpose of the bill was to make the laws of Canada more like those of Great Britain — and Britain had ended the death penalty for dozens of crimes.
- A member for New Brunswick said the bill was to make Canadian law more fair, because the new country had been using Ontario’s and Quebec’s criminal laws. He argued that the new country’s laws should reflect the former criminal law of all the provinces.
- One MP said that if the laws were too strict – so strict that the public would be outraged by the sentence and judges would be unwilling to find people guilty. Thus, the death penalty’s “efficiency in preventing crime would be entirely neutralized.”
- A senator named Sanborn toyed with the idea of the complete abolition of the death penalty, , and suggested that society was partially to blame for the actions of criminals.
- A senator named Tessier said that violent punishments were out of step with the modern world.
- Another mentioned a case in which a man executed for rape was later found innocent, and said that getting rid of the death penalty would help prevent miscarriages of justice.
Again, none of these arguments were made specifically about “sodomy.” But they may be the key that helps us understand the attitudes of judges and lawmakers at the time. The evidence suggests that the authorities believed – and thought the public believed – that homosexuality was immoral and deserved reform, but that it did not deserve death.
Capital punishment had passed out of fashion. It had come to be considered archaic, barbaric, and ineffectual, and was reserved for the most evil of acts. Given that homosexuality was only assigned a minimum sentence of two years, it’s clear that – whatever official rhetoric – no one actually considered homosexuality “the worst of crimes.”
The bill was passed on May 21, 1869 by the House of Commons, and got its final rubber stamp on June 22 of that same year.
The end to the death penalty for homosexual acts had a rather unpleasant side effect, however. The theory that judges may have been unwilling to convict if it meant executing a criminal for simple immorality seems to have been true – or at least the conviction rate steadily increases after 1869, and exponentially after 1890.
What’s more, the persecution began to take on a nastier hue. Police raids of bars and safe-houses began by the end of the 19th century, and the government gave itself broad powers to prosecute not only anal sex (the only kind of sex covered by “sodomy” laws) but other kinds of sex between men, or even simple acts of affection between men.
This is a story for another day, though. Before we turn toward this post-Confederation Canada, we’re going to take a look at the silence around female homosexuality, and the strange place of Sappho in early Canada.
Sources: The primary for this piece sources were the legislative Journals of the House of Commons (1869), the Debates of the House of Commons (1869), the Debates of the Senate (1869), Statutes of Canada (1869), and the Journals of the Nova Scotia House of Assembly (1850). General information on laws and attitudes of the time comes from sources already cited in previous articles. I added details about the abolition of the penalty on rape, murder, and so on because people keep finding my site looking for this information. The information comes from an Amnesty International site here.