Seen from the point of view of the “sodomites,” the Conquest of Quebec was a mixture of good and bad. On the positive side, the Quebec Act of 1774 effectively legalized lesbian sex – England did not define female homosexuality as “sodomy.” It also brought in the principle of “innocent until proven guilty,” and introduced the jury system.
However, the Conquest also meant that New France passed from the hands of a country that was gradually becoming kinder to sodomites to one that was beginning to become more brutal. France had hit the peak of its executions in the 1600s, and would legalize homosexuality in just a few decades, while Britain – after centuries of denying that homosexuality even existed on its shores – had begun the with-hunt in earnest in the 1690s. It would continue to get worse until the early 1800s.
A gambler would be tempted to bet that things would actually become much worse in the future Canada, because of the 40,000 refugees pouring over the border after the American War for Independence – refugees from what had once been the most violently homophobic portion of the English-speaking world, probably even of European civilization. Puritanism had weakened somewhat, but the Puritans’ extreme homophobia seemed to have put a deep stamp on the American psyche that kept anti-sodomy laws on the books into the 21st century.
In spite of this mix of very volatile threads, the French-Canadian tradition of tolerance and the Loyalist Tory tradition of not-fixing-what-wasn’t-broken seem to have encouraged to look the other way. Just as England had done until the 1690s, Canadians seemed eager to keep up the pretence that homosexuality just did not happen within their borders.
Thus, when a Halifax newspaper printed a story of a British lord attempting to rape another man, it seems to be under the impression that its readers didn’t know what homosexuality was. Thus, even lawyers were confused about what the term “sodomy” meant. Thus, “sodomy” trials were rarely talked about in the press.
Yet, homosexuality was mentioned in the books Canadians read – mostly in travelogues and missionary accounts. There, they learnt that men married men in China, that a (black) Ugandan king’s same-sex desires led him to massacre countless innocents, and that the First Nations living on the great plains at the heart of North America celebrated rituals that respectable Europeans would find disgusting.
Homosexuality and race became linked in the public mind, and homophobia fed the Europeans’ growing sense of racial superiority – a subject I’ll return to later. The linking of race and homosexuality distanced Canadians from the reality of homosexuality in Canada. It was something that happened elsewhere, among non-Europeans.
“Sodomites” in early Canada
This belief that homosexuality was a purely foreign vice seems to have acted as a kind of protection. While many records are missing or impossible to access, the number of “sodomy” or “buggery” trials seems to have been very few, and all the ones before 1841 that I can find details of involve bestiality, same-sex rape, or paedophilia – all lumped under the same category of “buggery” as homosexuality between consenting adults. Among these, we have Thomas Clotworthy in Montreal, caught in bed with an eleven-year-old, and Jean-Baptiste Coulombe (also in Montreal) accused of raping another man who was probably named Pierre Courtois. Neither of these trials seem to have resulted in a “guilty” verdict. Even when it came to actual or statutory rape, the courts seemed willing to give a fair trial, and kept to the innocent-until-proven-guilty rule.
Moreover, when men start appearing in prisons for sex between consenting adults, it seems that the judges were lenient, that governors were willing to commute death sentences.
(This wasn’t unique to homosexuality – Canadian judges applied the death penalty less often than judges in other countries, and governors were constantly commuting sentences for a variety of crimes.)
When the penitentiary was built at Kingston, it brought with it a new paradigm – that the law didn’t exist to punish criminals, but to reform them. With that in mind, judges became less reluctant to issues sentences for sex between men, and the first consensual couples start appearing in the records.
Virtually every person I’ve found who was sentenced in Canada for gay sex throughout the nineteenth century was working class. The first couple to show up in the records were a pair of common labourers – 39-year-old English immigrant Samuel Moore and 27-year-old Irish immigrant Patrick Kelly. It would be fifteen years before a second couple – George Smith and George Hogg – arrived at the penitentiary.
As for the wealthy and the powerful, they managed to escape the full force of the law. Wealthy Scottish merchant Alexander Wood accepted quiet exile from Canada in exchange for silence – and then managed to return to the country after only a short time and re-establish himself.
Wood had been accused of abusing his power to see some soldiers naked. Though this was well known, Canadian high society chose to look the other way. Wood bought a plot of land that became knowing as a regular cruising ground – Molly Wood’s Bush – and this region later formed the heart of Toronto’s Church and Wellesley area.
George Herchmer Markland – the rising star of the colony’s elite, the Family Compact – was less lucky. His encounters with soldiers and possible attempt to buy the sexual services of a law student destroyed his career. The scandal was covered up, but Markland was still removed from the centre of power and almost completely erased from colonial high society and history.
Another powerful individual, the second-highest-ranking British medical officer in the Empire James Miranda Barry, was not even suspected during his stay in Canada, in spite of his unusual appearance. Barry – who was quite likely either intersexed or transgendered – seems to have had some difficulty “passing,” but his position as a member of the elite of colonial military officers seems to have protected him from excessive questioning. He was mostly known for his reforms that greatly improved the lives of soldiers.
While male homosexuality did occasionally become noticed by the courts or the ruling classes, female homosexuality remained completely invisible during this period. In fact, it was so invisible that the highly-conservative feminist movement of the 19th century felt safe using Sappho as an icon of female empowerment in the field of literature, without any apparent fear that it might taint them by association to “Sapphic love.”
Progress and Backlash
Given the silence, the secrecy – the simple fact that homosexuality just wasn’t on anyone’s radar – it’s probably not too surprising that in 1869, the new country quietly abolished the death penalty for “sodomy” without a second thought or any real debate.
This was part of a wave of political reform that had led to Confederation, and had swept the death penalty from the books for almost every crime – a wave that had begun in the very progressive province of Nova Scotia. Halifax had abolished the death penalty for “sodomy” as early as 1848.
After Confederation, however, things started to get much uglier. This is the time of the rise of extreme-racist “social Darwinist” movements that used immigration laws, government institutions, and propaganda to enforce their xenophobia.
Not surprisingly, this period from 1867 to the First World War also marks the first real rise in major persecutions against homosexuals and bisexuals in Canada – the first police raids, the first “education” movements, the first newspaper moral crusades, and the first public discussions about what to do with the “problem” of homosexuality.
It was also a time when the British government provided the model for a new tool with which to persecute homosexual and bisexual men – the “gross indecency” law.
Before we turn to this law, we’re going to have to look at the changing understanding of what homosexuality was, what caused it, and how to deal with the “problem” of people who had sex with people of the same sex.