Canada got its “gross indecency” law five years after Britain did. The law was imported by an eager young law-and-order type named Sir John Thompson, who was at that time Minister of Justice in the cabinet of Prime Minister John A. MacDonald.
Thompson is a fairly important figure in Canadian legal history – the father of our criminal law, in fact. In 1892, he would also become our fourth prime minister, and in 1894 he would be dead – his life having ended quite suddenly (and embarrassingly) at a luncheon with Queen Victoria. In those four short years, Thompson managed to pass the gross indecency law twice.
When he introduced the bill the first time in 1890 as part of a short update of the criminal code, it was a precise copy of the Labouchère Amendment. His introduction of the law on April 10, 1890 is worth quoting in full:
”The third section of the Bill contains a penalty for gross acts of immorality committed in reference to a male person. We have upon that subject very little law, and we now have no remedy for offences which are now notorious in another country [Britain], and which have made their appearance in this country. I think, that a clause of that kind, which is in the English Act, shall be adopted here. I propose, however, in committee, to enlarge the maximum term of imprisonment from two years. In this class of offences, which, as I have said, obtained some notoriety in the mother country, and which have made their appearance here in one or two places, the maximum penalty of two years imprisonment is, I think, entirely inadequate.”
Sadly, Thompson doesn’t give us any details of the “one or two places” where gross indecency has begun to appear in Canada.
There was some argument in committee about the wording of the bill. No one objected to the spirit of the law, but several objected to the letter.
Conservative Sir Richard Cartwright said that although he was afraid that homosexuality “has been on the increase in certain sections of society,” he still worried that the vagueness of the bill “might lead to consequences that he [Thompson] does not intend.” Peter Mitchell (Independent, NB) pointed out that Thompson had used the words “gross indecency” in another section to indicate something entirely different (heterosex in public).
Thompson responded to Cartwright, saying:
”I think it is impossible to define them any better, for the reason that the offences which are aimed at are so various. The notorious cases which I mentioned a few moments ago [– not recorded on official record –] are not the same in their characteristics, and the description which would cover them would not apply to those cases which have been brought to my attention, as occurring in Canada within the last few months. I think it is better to leave it in this form. It is not more vague than the English Act.”
This was enough for Cartwright, but not the Liberals and the independent in the room. John Charlton (Liberal, Ontario) reminded Thompson that “The offence referred to in clause 3, in many American States, is specifically named.”
Mitchell said, “I still think that in so serious a matter as one involving imprisonment for five years, the specific act characterised as ‘gross indecency’ ought to be in the statute.” He added, “No false modesty should restrain us from protecting the liberty of a subject in a case like this.”
Thompson didn’t even bother to answer Mitchell or Charlton. The committee left the section as it was, with its harsher penalty than Britain’s.
When the bill came up for its final vote on April 16, 1890, the Liberals suggested other amendments to the other clauses — the seduction of women and the trade union clauses seemed to be the most controversial. No one bothered to amend the parts about homosexuality, and the bill passed easily.
Thompson was clear during the debate in committee that the law needed to be vague – like Britain’s law, its lack of specificity was seen as a positive aspect, because it effectively criminalized any act of desire, affection, or romance between men, rather than outlawing a specific sexual act.
The New Criminal Code
Thompson’s magnum opus was the Criminal Law Amendment Act of 1892. Behind this bland name was the most massive bill in Canadian history up to that point – an attempt to rewrite the entire Canadian criminal code from scratch, instead of making just the usual patchwork changes. Any law that was to kept had to be re-passed, including the “gross indecency” law passed just two years before.
Members of parliament picked over every aspect of the new criminal code, suggesting amendments. They did not spend much time on what was now known as “section 178,” but this time even Liberal leader and future prime minister Sir Wilfred Laurier said, “It is difficult to know what is a gross act of indecency, and what is not.”
Thompson countered that “gross indecency,” being a more serious crime, it would get a “higher judge” – presumably one trained in what a Liberal MP named Louis Henry Davies called “the niceties of the English language.”
There was one significant difference between the first debate and the second, however – one of the Liberals opposed punishing homosexuality with jail time at all. David Mills was a former school superintendent and a journalist, respected for his intelligence but seen as a bit of an ivory-tower intellectual. He got the nickname “the philosopher of Bothwell” from his political enemy, Prime Minister MacDonald.
Mills was the first to argue that the state had (almost) no place in the bedrooms of the nation. As he put it:
”All these offences against morality have crept into the common law from the earlier ecclesiastical law, and they were rather sins than crimes, not being attacks upon property or life, or upon members of the community. These offences are wholly subjective, and altogether different in that respect from the other crimes embraced in the statute book, and it is a question whether crimes of this sort should be punished by long terms of service in the penitentiary. I do not think they should. I think that flogging, or something of that sort, and the discharge of the prisoner, is preferable, and a far better deterrent than anything else.”
The justice minister, however, disagreed. Thompson told “the philosopher of Bothwell:
”There is a distinction, I think. We only punish them as crimes where they are offensive to the people, or set a bad example. As to the section 178, relating to acts of gross indecency, I have no objection to reducing the term of imprisonment, considering that whipping accompanies it. It is impossible to define these cases by any form of words.”
What is intriguing is that Thompson’s answer avoids any mention of religion. This may have been because religion was a very touchy subject – Thompson was a Catholic in a largely Protestant party, and the most controversial issue of the day was whether Manitoba had the right to deny Catholic schools public funding.
Yet he makes clear that the purpose of the jail sentence is to prevent homosexuality from spreading. Just a few decades earlier, “sodomy” laws had been written using Biblical terminology – “abominable” and “abomination” being popular terms of choice. If they’d felt the need to justify themselves, they had used Bible passages for their support. They had needed no further justification than that the punishing of “sodomites” was God’s will.
This was the first time any politician in Canada publicly challenged the value of anti-gay laws – and the first time those laws ever had to be justified with secular rather than religious arguments. Sadly, David Mills’ argument was ignored, and the code passed with no further debate upon the subject.
“The philosopher of Bothwell” was a rare dissenting voice in an increasingly moralistic society. Before we turn to that climate of moral crusade, however, we’re going to look at the first victims of these “gross indecency” laws.
Sources: My primary sources for this section are the Hansards of the Debates of the House of Commons for 1890 and 1892 (volume 2 in each case) and the Debates of the Senate for 1890. For details of Thompson’s life, I went to the Life & Work of the Right Hon. Sir John Thompson (1895), by J. Castell Hopkins, with a little help from Wikipedia. The Dictionary of Canadian Biography Online filled in many of the details of Thompson’s and Mills’ lives.