Archive for the ‘laws’ Category


Photo: The Champ-de-Mars in 2016.  A photo from 1866 shows the park barely changed, though lined on both sides with trees and without the old city wall exposed.

Study the history of gay and bisexual men long enough, and sooner or later you will have to broach the topic of cruising grounds.

It’s something of an uncomfortable topic for many gay men these days, but beginning at some point in the middle ages, every city of any real size in the West gives rise to a public area – very often a park or forest – where men met men for anonymous sexual encounters.

This formula does not seem to universal to all societies, or even necessarily exists in the West’s ancient past. Ancient Greece and Rome had their gyms and bath houses where men met men to flirt and even have sex, but the anonymity – the silence – of the cruising grounds was something different altogether. Part of the advantage of these areas was that the men knew nothing about one another. Each put the other at minimal risk.

It’s no accident that most gay neighbourhoods arise close to cruising grounds, and that the cruising grounds usually come first. There seems to be a kind of organic process that can be observed in Western cities, in which the cruising ground produces the gay community around it.

It’s not difficult to imagine why. Men who use cruising grounds sometimes move close to it, especially for those men for whom it becomes a major part of their lives. Those men can invite men into their homes instead of staying at the park, where conversation is possible as well as sex. They will frequent business nearby, and may even own them. They will become familiar with the other regulars of the park.

This inevitably creates informal networks and connections outside of the cruising ground, which in turn leads to the sharing of experiences, the creation of art, and the development of shared political and cultural views and values. Eventually the neighbourhood develops a reputation, which attracts gay and bisexual men who would not have joined the cruising scene given a choice. Luckily for them, an alternative then exists.

Still, this crystallization of a community on the edge of a cruising ground can only happen if the larger society around it is willing to grant at least a grudging tolerance – or if not tolerance, then to not consider its destruction a priority. Such a community will not form so long as the police and the neighbours are committed to its extermination.

And when a society decides to withdraw a permission it had previously granted – to make breaking that community a priority again – then the community will usually break or be forced to move. This happened to the British “Molly Houses” in the eighteenth century, and to Montreal’s twin gay districts in the 1970s.

Cruising grounds are harder to destroy. They have no institutions to target, no central figures to get at. They have to be attacked one man at a time. A concerted, constant effort will force them to change locations, but they will simply spring up in another park or public washroom. They are the lowest common denominator of a gay community, emanating from a simple mathematics of population. They are merely the result of gay and bisexual men having nowhere else to go.

Legend has it that “Molly Wood’s Bush” was used in Toronto since the 1830s, but the earliest solid corroborating evidence for a cruising ground exists for the Champ-de-Mars beginning in 1869, a three-block stretch of park in Montreal behind its decorative city hall and its silver-domed law court.

“Champ de Mars” (“Field of the God of War”) is an old French military term for a place where troops were trained and put on display. The original one for Montreal was located outside the city wall. After the British conquered Montreal and the wall was torn down, the park behind city hall was renamed in its honour.

In 1869, most of the island of Montreal was still farmland, but the section of city close to what we now call Old Montreal was heavily urban, cramped, and overpopulated. At some point before June of 1869, men from the rapidly growing city began frequenting the little patch of green space to cruise for sex. It was inevitable that sooner or later, they would attract the notice of the police.

Moïse Tellier’s Cake and Apples Shop

On any short article of LGBT history in Quebec or Canada sooner or later you’ll inevitably reach a curious reference to Moïse Tellier’s cake and apples shop. The version most often published is that the shop was a supposed notorious hangout for homosexual men in Montreal, raided by the police in 1869.

Hardly any of these lists go into any significant detail of the event, and none put it into any context. Indeed, there is enough evidence to suggest that the version almost universally given is wrong.

Almost everything we know about the shop and the raid comes from a single newspaper article in the long-defunct Montreal Star newspaper, in their June 8, 1869 edition:

Yesterday morning, an old man of 60 named Moise Tellier was brought before was brought before the Recorder charged with indecent assault on a Constable. Tellier lives at 477 Craig Street, the same premises occupied by James Butler of the Britannia Saloon, Dr. Perrault and several other respectable citizens. Tellier’s business is nominally to keep a small shop for apples, cakes and similar trifles. But the business is only a cloak for the commission of crimes that rival Sodom and Gomorrah. A house of prostitution were indeed decent compared to this den. It has been watched for sometime past by the police, and we regret, for the credit of our city and humanity, to say that several respectable citizens have been found frequenting it and evidently practising abominations.

The police apparently set up a sting operation, and one complicated by Moise Tellier’s connections:

A special policeman was sent there, and after a brief acquaintanceship, Tellier made ouvertures to him of a nature too abominable to be described. The policeman knocked him down and brought him to the station. We are sorry to say that Mr. Bourgouine was found to defend him. It appears that Mr. Bourgouine is counsel for the revenue department, that a son of Tellier’s is a whisky detective, and that most of the expeditions [police raids] against shebeens [unlicensed bars] are organized at Tellier’s house – certainly a respectable rendezvous. The miserable wretch fell on his knees and implore pardon of the court, withdrew his plea of not guilty, and threw himself on the mercy of the Recorder [Municipal Court Judge], promising to quit the practice and leave the place. The Recorder said he regretted he could not send him to the penitentiary. The law provided no imprisonment, but he would fine him $20, the highest prescribed amount.

The trial was mentioned in a blurb in the major French-language daily La Minerve the same day, but that newspaper went into no details other than to state the name of the accused, the crime he was convicted of, and the the fine. No other newspaper saw fit to mention it, and while some papers (such as The Montreal Herald) only published a small selection of local crime news, in others it is conspicuously absent. Both The Montreal Witness (a Protestant religious paper) and the L’Ordre (a Catholic religious paper) both routinely reported on local crime, but excluded Moïse Tellier’s arrest.

(This is especially glaring in the case of The Witness, which reported on prostitution, murder, theft, beatings, public drunkenness, and countless other crimes, but would apparently not report on homosexuality.)

The story is presented in modern lists of the gay history of Montreal as the first gay bar or secret club. It tends to be described variously as some kind of early speakeasy, and Tellier as some kind of patron and centre of an early gay community. I’ve seen it called North America’s first gay bar.

Yet it seems as though no one has ever previously made a serious effort to research Moïse Tellier and his life. There is enough information to sketch out some aspects of the man and his store, but what we know raises more questions than it answers.

The article in The Star, unsurprisingly, got his age wrong. At the time of the trial, Tellier was 53 years old. Eight years before he had moved to the address on Craig Street, we get a glimpse of his life in the 1861 census. He had lived on Sanguinet Street nearby, in a two-storey brick building with a wife, an elderly, never-married Cyrill Tellier, and six children – Georginie, Joseph, Josephine, Narcisse, Louise, and Philomine.

As for the son who was on the police force – assuming that that was not another mistake on the part of The Star – only Joseph could conceivably be old enough in 1869. It is possible Tellier had another adult son who was not living with him, but there are no police detectives named Tellier listed with the city police force in 1869 or 1870.

His wife’s name is completely illegible due to the enumerator’s poor handwriting and the condition of the document, but a Canadian government archivist’s best guess of “Emilie” seems plausible. There is a “D” in front of her name. Tellier is listed as “widowed” and “married.” The census at the time included the recently deceased along with some kind of indication of their status, and the “D” most likely stands for “défunt” – dead.

(The archivist who transcribed that page of the census interpreted the “D” before her name as “Dr.,” though this is six years before Emily Stowe became famous as the first woman to practise medicine in Canada. That is only one of many reasons why this is highly unlikely.)

The family moved almost every year, though there is nothing out of the ordinary for the time – nineteenth century Montrealers were very nomadic. There is no record of them before 1854, but given the poor record-keeping of the time and the many records destroyed by accident and violence, this is not surprising. It is also possible the family came out of rural Quebec before 1854, as so many had.

We have absolutely no idea how Tellier saw his own sexuality. The words “homosexual” and “bisexual” did not exist in English at this point. Contrary to what some historians believe, men did wrestle with what their sexuality meant, did form identities around it, did reach conclusions about the origin of their desires, and did categorize themselves and others before the words we use existed; but the authorities were completely uninterested in such things. They rarely recorded these identities, or if they did it was done to illustrate how unrepentant these men were.

So if Moïse Tellier had reached any conclusions about his own sexuality, we will never know it.

If the Moïse Tellier who moved into the storefront on Craig Street sometime in 1868 or 1869 looks nothing like gay community leader he’s sometimes made out to be, the idea that his store was some kind of secret gay bar or speakeasy seems just as unlikely. The shop was a small storefront crammed in beside a bar and a doctor’s office, and pressed up against a much larger house where a single family was apparently running a law office and a dental practice out of their home.

The fruit shop (as it is generally listed in guides) was narrow, and probably not long. It was brick, and in the one surviving photo that includes it, it looks to be only two storeys. At least five of Moise Tellier’s children lived with him, probably in living quarters on the second floor. It was small, humble even, and most likely very crowded.

As for what happened in June 8th, the facts generally agreed upon are that a) something of a homosexual nature was going on, b) Tellier was involved and implied to be for some time, and c) on June 8th he had sexually propositioned a constable. Tellier offered a not-particularly-sincere plea that he would repent and change his ways, and the judge was not convinced.

What was going on in the shop? Most of the assumptions about it are based on The Star’s ludicrous language that it was the site of “the commission of crimes that rival Sodom and Gomorrah” and that “A house of prostitution were indeed decent compared to this den.” Also, there was the accusation that prominent citizens were visiting it.

Leaving aside The Star‘s unreliability – in their effort to fulminate, they forgot to fact-check such basic details as Tellier’s age – I think what most people who’ve looked at the Tellier case have failed to grasp is that the kind of language that the paper used was simply how newspapers at the time talked about homosexuality (when they deigned to talk about it at all).

So The Star would have used the same language whether Tellier was hosting all-male orgies, or if he was one half of a discreet, monogamous gay couple.

As if to hit this point home, reporting three days later on a man named Joseph Gagnon who was bringing soldiers home with him for sex, they said he was “quite a match for Tellier.” This would be a strange comparison if Tellier was running a secret club while Gagnon was just bringing men back to his place.

By far the most likely possibility is that the widowed father of at least six was quietly taking men home from the Champ-de-Mars cruising ground across the street, most likely at night when his shop was closed and his children were asleep. Any “prominent citizens” frequenting it would have likely been his partners, though it’s not impossible he let others use his back room.

Anything more than this would have been pretty much impossible, given the homophobia of the times and the nature of the space he lived in. As disappointing as it might sound, Tellier was most likely just using his shop as a safer and warmer alternative to having sex in the Champ-de-Mars park, which was already being noticed by the police and by that new phenomenon – attested to in newspapers for the first time a month after the Tellier trial – the gaybasher.

There is one last mystery with regards to Tellier, and that is we don’t know what he was actually convicted of. Both The Star and Le Minerve claimed it was “indecent assault,” and Tellier admitted to homosexual acts.

But the judge lamented that he could only sentence he could give Tellier was a $20 fine, and there has never been a point in the history of Canada when same-sex sexual assault was so lightly punished.

To be fair, it was a confusing time in Canadian law. A new, consolidated criminal code was coming into effect the month after Tellier’s trial. But the original law had provided the death penalty for same-sex sexual assault (or attempted assault). The new law specified that any man convicted of “indecent assault” against another male was “liable to be imprisoned in the Penitentiary for any term not exceeding ten years, and not less than two years,” or a sentence up to two years in an ordinary jail.

The Recorder’s Court, ironically, kept very poor records, but what we do have seems to concur that Tellier was not charged with “indecent assault” – there was no such crime before the court that year, and no such crime remanded to the higher court of the Quarter Sessions.

All we have is a tally of each crime committed, and he was most likely one of the 86 people charged with the “assault or resist [of] any Officer” statute in the city bylaws, which was so broadly defined as to give the arresting officer wide powers.  Given how specific “attempted sodomy” was in its definition, it was probably all they could have charged Tellier with.

Twenty dollars was worth a lot more in 1869, but the law said that the penalty should have been far worse.  It would have been an appropriate penalty for “assault or resist” though.

The Guards at the Gate

I began this article by reflecting on the relationship of cruising grounds to the large community. The cruising ground is not just a steam-release valve for gay and bisexual men in a homophobic culture – from a social history perspective, it’s a larger community in embryo.

For a cruising ground to grow into a complex community, the rest of the world has to be willing to leave it alone. If the larger, homophobic culture perpetually polices the borders places like the Champ-de-Mars (or Molly Wood’s Bush, or Stanley Park) and harasses the men that use it, the seed it represents will never germinate.

The reason Moïse Tellier’s supposed gay bar has achieved a kind of mythic status without any real evidence that it existed is simply because people want it to be true. LGBT folk want to believe that someone carved out a space for themselves in a world that so viciously hostile. Montrealers want to believe that their city has always been a place where anything goes. Canadians want to believe that the country is more tolerant and compassionate than its neighbours, and always has been.

The reality is a lot more ugly. As short as Canada falls from its own ideals today, the late 19th and early 20th century was an especially intolerant age. Montreal was no exception to the rule, and in the 1860s violent religious bigotry was especially on display here. The Canadian Illustrated News opened its first issue of the year 1869 with a picture of churches burning in Montreal. Catholics and Protestants murdered one another in street riots.

And the competition between Catholics and Protestants had the side effect of spurring both on toward greater heights of moralism and fanaticism. Compared with Britain’s much more relaxed attitude toward religion and post-Revolutionary France’s anti-clericalism, Canada was medieval in its approach to the various branches of the Christian religion and the absolutism with which it applied them.

It is important to see Tellier’s arrest in this context. Since the days of the first European colonies, things had never been good for LGBT people here. Now society was rapidly becoming more racist, more fundamentalist, more bigoted – and more convinced that it had to root out corruption of any kind.

To see it another way, the Montreal police force was only five years old, had only a handful of officers, and had to police a city of more than a 100,000 people that was rapidly growing. They were underfunded, underpaid, and stretched thin. If they set up a sting operation, made two arrests, and almost made a third of men cruising the Champs-de-Mars in a single month (and they did) it was because they considered targeting the park a serious priority for their scant resources.

The Champs-de-Mars was frequented for at least a decade and a half, if a La Presse article from 1883 is any indication. It is telling that it never produced a gay neighbourhood around it. At some point the cruising grounds moved to the much larger Mont-Royal park, where a series of trails had been built in the 1870s, and where it was easier for men to meet each other without attracting police attention.

When Montreal finally got its gay neighbourhoods – two parallel ones, in fact – it is not at all surprising that one was at the foot of the mountain. The other was in a “tolerance zone” where the police avoided making arrests for vice crimes so that they could keep all that “vice” in one place.

That’s a story for another day. Before we move on to other topics though I would like to take a further look at the persecutions of 1869, to the case of Joseph Gagnon and at the beginning of gaybashing in Montreal.

Sources: My first sources were the series of Montreal Star articles – dated June 8th, June 11th, and July 17th, 1869. I checked a half-dozen other newspapers, but only Le Minerve even mentioned the Tellier case. I used the census for the years of 1861 and 1871, and Lovell’s directories over a period of 20 years – there only seemed to have been one person by Tellier’s name in the city at the time. I checked detailed city plans of the house. There were the usual sources – legal codes for the era. I used Starke’s Pocket Almanac for 1869 and 1870 for details about the police, as well as Constabulary: The Rise of Police Institutions in Britain by Hereward Senior. I hunted through archival photos and maps for details on the house itself, but only one photo included even a corner of the building. The block where the building was has been demolished to make way for the Ville-Marie Expressway, though in a photo from 1927, it appears that a factory-like building had already replaced it.


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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.

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When Kulenthiram Amirthalingam returned to his native Malaysia from Canada to visit his boyfriend of 12 years in 2003, he was harassed by the other man’s family. They soon got the police involved.

Amirthalingam was held in jail for five days. There he was beaten, held underfoot, and sexually harassed by the police. They were trying to extract a confession.

Another man before Canada’s Immigration and Refugee Board is Gareth Henry, a Jamaican gay activist. He’s personally known thirteen victims of anti-gay murder in the country of his birth. Police harassment there is constant, and according to Amnesty International, gay men who’ve been arrested in Jamaica have been brutally mistreated by police, and left to the mercy of their fellow inmates.

The laws that have been used to persecute Amirthalingam and Henry in their home countries are usually referred to in the popular press as “sodomy” laws. But “sodomy” laws have always been difficult to apply because they require a witness of some kind to an act of sex.

Instead, the real danger in both Malaysia and Jamaica is something called the “gross indecency” laws. You could once find these laws all over the former British Empire, with a few exceptions like India. Their vague language has been used to criminalize everything from sex acts not covered in the “sodomy laws,” to dancing between men, and even to a simple kiss.

These laws still exist in Malaysia, Jamaica, Singapore, Trinidad and Tobago, and Saint Kitts and Nevis. Until the 1960s, they were near-universal in the former British Empire.

Their most famous victim in Canada was George Klippert, a mechanic from the Northwest Territories who’d made the mistake of casually admitting to a police officer that he’d had sex with four other men in what the CBC archives specify as “consensual, private, non-violent acts.”

In Great Britain, of course, the celebrity victim of this crime was Oscar Wilde, who was sentenced in 1895 to two years and hard labour for his affair with Lord Alfred Douglas.

These days, people simply assume that the laws in Canada and Britain were on the books but rarely applied. This concept, while comforting, is wholly inaccurate. In the first half of the 20th century, the use of these laws became more and more common. The Wolfenden Report – a report of a British government committee led by Sir John Wolfenden on “homosexual offences and prostitution” – published detailed statistics on the use of the “gross indecency” law in England and Wales. In 1945, there were 201 trials in these countries for this crime. In 1951, there were 746 trials resulting in 675 convictions. In 1955 there were 995 cases, resulting in 887 convictions. The overwhelming majority of convictions resulted in jail time.

In Canada, the justice system originally planned to lock Klippert up and throw away the key – as a “dangerous offender,” he would have been given actual life in prison with no chance of parole. Thus, as late as 1965 in this country, homosexuality could be punished more stringently than most murders, if the offender admitted they were gay or bi, and thus likely to “re-offend.”

The Wolfenden Report noted that several people they spoke to in Britain in 1957 referred to the gross indecency law as “the blackmailer’s charter.” “Sodomy” laws required witnesses, but almost anything could be used in a charge of “gross indecency” because the law was so vague. A kiss, a stained sheet, a love letter, and one’s mere presence in a gay bar became evidence that any blackmailer could make money on.

These laws also gave rise to another form of blackmail – one more insidious than the monetary kind. A clear pattern emerges from the countries that had gross indecency laws – a pattern of police harassment. Often these threats (and, in some cases, acts of torture) did not lead to arrest. After terrorizing their victim, the police let him free with the implicit understanding that any complaint against them for the threats and violence could result in gross indecency charges. Their word against the police in such matters would likely result in a conviction. This was as much the case in Montreal in the 1950s as it is now in Jamaica.

The Invention of “Gross Indecency”

For the thousands upon thousands of men worldwide whose lives were destroyed by these laws, it might come as a surprise to know that they were originally an afterthought, tacked on to the bottom of a bill dealing with female prostitution.

Radical MP Henry Du Pré “Labby” Labouchère was the father of the Labouchère Amendment, as the “gross indecency” law was known. No one knows why he proposed the new law – it was out of character with his usual anti-poverty, anti-racism, pro-democracy style of firebrand politics.

Caryn E. Neumann, in an article on the amendment at glbtq, suggested that the law “may have been another attempt to protect the weak from predators.” In the very gendered statutes of the time, most laws against sexual assault protected women from men. The “sodomy” laws did double duty in protecting men and boys from rape. Labouchère may have been trying to protect males from other kinds of forced sex.

I’m inclined to agree with Neumann. Labouchère’s defence of his amendment makes it pretty clear he was thinking about sexual abuse, not consensual acts:

”…[Labouchère said that this] was his amendment, and the meaning of it was that at present any person on whom an assault of the kind here dealt with was committed must be under the age of 13, and the object with which he had brought forward this clause was to make the law applicable whether under the age of 13 or over that age.”

Labouchère didn’t bother to explain to explain further, but it’s obvious from his use of the word “assault” and his concern for the victim that he was worried that adult men could be sexually abused, either by force or by other forms of coercion. As a champion of the poor, Labouchère may have been worried about servants and employees being forced into sex by their employers.

The amendment was only subjected to a minimum of debate – it had come before parliament in the last days of the session in August 1885, and everyone was eager to get home. An MP named Warton asked why it was being tacked on to a bill that had nothing to do with it, and Sir Henry James asked if the punishment shouldn’t be more severe.

This second criticism carried the day, and in its final form, the law specified up to two years imprisonment, plus whipping.

”Gross Indecency,” the Police, and the Courts

If Labouchère had intended the bill to be about sexual abuse, that’s not how law-enforcement officials and the courts understood it. Ten years after the bill was passed, Oscar Wilde and his partner were both sentenced for consensual “gross indecency” with one another, and the judge felt that two years was “totally inadequate for a case such as this.”

In a single decade, the law had metamorphosed from a tool to protect the vulnerable into a tool of repression.

The police in particular found it a useful law. From their point of view, it was difficult to tackle the “problem” of homosexuality, because the “sodomy” law only criminalized one particular sex act. Unless two men were caught in that act, prosecution for sex between consenting adult men was nearly impossible. The Labouchère Amendment would become the main weapon in the police arsenal, a tool to help them contain what was seen as a growing problem.

The new law’s strength was that it was, vague. Because no definition of “gross indecency” existed, the police and courts could stretch that definition around any sex act between men, and even over little gestures of affection.

This was a fundamental shift. The “sodomy” law was targeted at an act, but the “gross indecency” law was aimed at a group of people. The “sodomy” law didn’t care about motivation beyond the simple matter of consent, while the “gross indecency” law was all about motivation – any act or word that made manifest same-sex attraction was now a criminal offence, and so ultimately it was the attraction and not the act that were illegal.

Historian Byrne Fone describes what this shift meant for homosexuals at the end of the nineteenth century and the beginning of the twentieth:

”The state assumed the right to police, control, and investigate any act by a person suspected of homosexual inclinations. Blackmailers, always a threat, were given a much-wider scope, since they could even use the imputation of homosexuality – a careless word, an insinuating letter, an unsubstantiated accusation – as a weapon.”

The law was soon copied into the colonial laws of Britain’s possessions, and was duplicated into the codes of independent Commonwealth countries.

In my next instalment, I’m going to turn to the arrival of this law in Canada.

Sources: Xtra.ca, the CBC, and Amnesty International USA’s websites have provided invaluable information on the state of gross indecency laws around the world, and the attempts of some of their victims to claim refugee status in Canada. Links on Wikipedia have provided the actual legal codes of the countries in question. A good background on the Labouchère Amendment can be found in Caryn E. Neumann’s article in glbtq: an encyclopedia of gay, lesbian, bisexual, transgender, & queer culture. The Wolfenden Report and the statistics in contains can be found in full-text here. For the situation on Montreal in the 1950s, the best source is the first section of Sortir de l’Ombre: Histoires des communautés lesbiennes et gaie de Montréal, ed. by Irène Demczuk and Frank W. Remiggi. As always, Byrne Fone’s Homophobia: A History has been quite useful, and a backgrounder on the Klippert case can be found on the CBC Archives online. The quote from the judge’s verdict in the Wilde trial comes from an online transcript of the case from the site of the law school of the University of Missouri-Kansas. Labouchère’s defence of his bill is in the Hansard for the British House of Commons, for August 6, 1885.

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Health Canada has decided to exclude gay men from donating organs. Here’s a the story.

It’s my understanding that we cannot even give an organ to a friend or relative under Health Canada’s recommendation — though some hospitals are saying they’ll ignore the ban. This joins the ban on gay blood and gay sperm. The sperm ban is particularly disturbing now that current medical and psychiatric science considers homosexuality to be at least partially hereditary.

The worst of it is that there’s no shortage of people in our own community willing to defend the policy, on the grounds that gay men are a high-risk group when it comes to AIDS.

But for all that, putting human rights on the altar of pragmatism — an increasingly popular pastime — won’t even make the blood supply safe. It’s risky sexual activity that health institutions should be screening for, including risky heterosexual behaviour. The question that needs to be asked is, “Have you had penile sex without a condom in the last six months?”

That question will never be asked, though. It can’t be asked, because if it were, the blood and organ supply would dry up.

It’s the elephant in the room when it comes to sex, AIDS, blood, and organs. Most gay men I know practice safe sex even in monogamous relationships. No heterosexual woman I’ve ever discussed sex with did the same — the ones I’ve spoken to about this (obviously not a scientific sample) considered “safe sex” to be “with birth control.” One woman I spoke to online said she’d rather die than question her husband’s fidelity.

And right there is part of the reason why heterosexual women are the fastest-growing demographic of persons with AIDS. Moreover, this is the reason why Health Canada cannot refuse heterosexuals indulging in high-risk sexual behaviour from donating organs or blood.

Given the other option of trying to change the sexual behaviour of heterosexuals, Health Canada has chosen for the much easier route of a purely cosmetic change in policy that rehashes the old stereotype that AIDS is a “gay disease” — not something heterosexuals need to concern themselves with. It gives the supply an appearance of safety, with little thought to the social harm caused by indulging a dangerous stereotype.

It’ll probably take another tainted blood scandal — or a tainted organ scandal — for us to realize that it isn’t actually working.

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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 Aftermath

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.

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Reconstructing LGBT history is difficult at the best of time. Historically, homosexuality has been seen as “the worst of sins,” “the nameless vice,” and “the unmentionable crime.” It is rarely spoken of, and then in whispers and euphemisms, until very recently.

Historians use mostly court records, newspapers, and private journals to sketch out the life of homosexuals and bisexuals before the first glimmerings of the liberation movement in the nineteenth century. Which brings us to the problem of New France — a place with a mostly-illiterate population that kept few journals and had no newspapers.

The stories of the unnamed drummer, the Seigneur de Saint-Michel, and the Two-Spirit people are the only examples historians have found of homosexuality in New France’s history. From what we can gather from the extant records, the Seigneur de Saint-Michel and the drummer were the only ones ever brought to trial for homosexuality in New France.

The lack of court cases suggests one of two possibilities about New France:

  • homosexuality was rare, or passed largely unnoticed
  • it was not rare but largely tolerated, with few cases going to trial

I think that — at least by the time Montreal was firmly established — the second possibility, not the first, better describes the situation. Though I realize this runs counter to everything we’d assume about that time and place, I think that the evidence weighs in its favour.

To begin this argument, I’d like to draw attention to Nicholas Daussy, Seigneur de Saint-Michel himself. He was clearly an intelligent man — he knew the law, he knew his rights, enough at least to demand a trial on his terms.

So why did he carry on what sounds like it was a set of very public relationships? There were eight witnesses, after all, not counting Dollier de Casson, who brought the case forward. And why — when the judgement accused him of “debauching many men” — were only two arrested?

The Saint-Michel case has all the hallmarks of the kind of trial where someone is “made an example of,” to send a message to others committing a common crime. And yet still, Saint-Michel managed to avoid jail, the galleys, and the death penalty. How did he do it?

Over the next few entries, I’m going to explore the political, cultural, and religious climate of New France. I’m going to start with life in France, since the colony was mostly made up of French immigrants until the 1700s. I will then move on to the social and sexual life of New France and the moral crusades of the church in that era.

While there’s little hard evidence either way, I think I can show that Quebec’s tolerance towards homosexuals and bisexuals is not something new, but has been part of local culture since the earliest days of its colonial history.

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In 1691, New France’s high court heard its first case of “sodomy.” The three defendants were a French lord – Nicolas Daussy, Seigneur de Saint-Michel – and two commoners. All three were in army sent over to protect the colony from the English and the Iroquois, the Compagnies Franche de la Marine. Saint-Michel was the real focus of the trial.

Not much is known about the man. He seems to have been part of the garrison at Montreal. The military records I’ve found are fragmentary, and St-Michel only shows up in court records and a letter by the Governor de Champigny to his boss back in France.

What little we do know:

  • He was definitely a lord – there seems to be some confusion about this among historians, but both court documents and the governor’s letter make this clear, as does his rank (commoners could not be lieutenants).
  • As a lieutenant, he would have been first- or second-in-command of a company. This was an important rank – first- and second-lieutenants were the two top positions in these independent companies.
  • He had no family that I can find in New France, and they’d only just started letting native-born nobles become officers, so he probably wasn’t from the colony.

When the curtain opens on this scene history, it’s late June of 1691. At the request of Catholic Church’s highest-ranking priest in Montreal – Father François Dollier de Casson, head of the Seminary – an investigation was opened. In another article, I suggested that this was probably a political move, initiated by the colony’s bishop, Saint-Vallier. The bailiff Pierre Cabassier took depositions from at least 7 or 8 witnesses, then issued a warrant for the arrest of the three men. They were captured on June 30th, and all three were interrogated by Cabassier.

The two commoners – Jean Forgeron dit La Rose and 21-year-old Jean Filliau dit Dubois – cooperated, but Saint-Michel refused to answer questions. The judge, Jean Quesneville, said that if Saint-Michel didn’t cooperate, the trial would proceed without his testimony. Saint-Michel demanded to see the governor of Montreal, the Chévalier Hector-Louis de Callières, Knight of the Order of St-Louis.

Meeting with Callières, Saint-Michel demanded the right to be judged by the highest court in New France, the Sovereign Council at Quebec City. Calliéres agreed with him, and carted the whole thing off to the colonial capital (he was probably glad to be rid of the mess).

At Quebec, Saint-Michel turned out to be something of a legal expert. He got the first investigation declared null because the bailiff at Montreal hadn’t followed procedures. The Grande Ordonnance — the legal rules handed down in 1670 — specified that only the king’s representatives could investigate and judge a “royal crime,” which included “sodomy”. These were crimes that were technically treason, and “sodomy” was considered a form of heresy, which was in turn considered an attack on God’s secular representative the King. Cabassier and Quesneville were in charge of the bailliwick — the ordinary court for nobles accused of a everyday crimes. The bailliwick wasn’t allowed to investigate a case of this kind.

The case went to the Sovereign Council, the colony’s government and supreme court. His seven judges included six lords and a count – two of them leaders of the colony (governor and intendant), and another two sons of councillors to the king. Notably absent was the colony’s bishop, Saint-Vallier, who was also a noble and a judge. This isn’t unusual in itself – he was often too busy to attend – but it is intriguing. They could’ve planned the trial for a time when he was around, but chose not to.

In any event, the Council ran a second investigation – this one run by one of the judges, Jean-Baptiste de Peiras – calling all eight witnesses from Montreal. Only seven made it (one was too sick to travel).

About most of these witnesses, we have only names. One is definitely identifiable – Catherine Tessier, wife of Montreal merchant Vincent Dugasz. Another was probably a 51-year-old man named Mathurin Moquin, whose 14-year-old son Mathurin may also have been called to testify. The sick one, Jean Hébert de Maubray, is only one of the group we can identify who has a noble’s name. We know nothing of their testimony. We do know that Saint-Michel was allowed to confront his accusers, which was unusual in the French system where people usually gave their testimony anonymously. It seems the Sovereign Council was trying to do things very much by the book.

It’s important to note that we never get Saint-Michel’s version of the story. For that matter, we only have bits and pieces of the version the judges decided on. What we do know is that Saint-Michel was convicted of “sodomy.” Dubois and La Rose admitted to it, and Saint-Michel never seems to actually deny it.

The court further convicted Saint-Michel “of having wanted to debauch many men,” and that he had “committed infamous and shameful actions to achieve this evil goal.”

Dubois and La Rose may have tried to convince the court that they’d been unwilling victims. If so, the court wasn’t buying it. It reprimanded them “for having allowed the shameful actions and emotional attachments of the said Saint-Michel, over a period of time where they could have gotten away or called for help.” Still, given that the penalty for sodomy was a minimum of exile and a maximum of death, Dubois and La Rose got off with a slap on the wrist – La Rose got two extra years in the military, and Dubois got three.

As for Saint-Michel — for a man accused of having transformed Montreal into another Sodom, trying to “debauch” many men in front of numerous witnesses – it may seem surprising that he was given the minimum penalty of exile, and a fine of 200 livres (about $1000 in today’s money) which he had to donate to charity. He also had to pay the costs of the trial.

The testimony was sealed up in a cloth bag that could be opened only by court order, so that it would never be viewed by human eyes again. To my knowledge, this testimony has been lost, and probably no longer exists.

After the sentencing, the soldier named Jean Forgeron dit La Rose disappeared from history – wherever he went, he doesn’t seemed to have raised a family in Quebec. At least one historian thought he might be Jean La Rose, married to a woman named Margeurite La Forgue. It’s possible — it wouldn’t be the first time the courts of New France had mangled a name so badly. If so, he would’ve been 30 at the time of the trial. Jean Filliau dit Dubois did start a family, however – he married three times (the first time seven years after the trial), and had 17 children, sadly none of them named Nicholas. He died at the age of 60.

As for Lieutenant Nicholas Daussy, Seigneur de Saint-Michel, we last seem him bound for the mother country. The colony’s Intendant, Jean Bochart de Champigny, told his boss back in France – at the end of one of his regular reports – that Saint-Michel “had been accused of many disgusting and filthy actions committed with some soldiers” and that he “is going back to France in one of our ships.”

For my next instalment, I’m going to talk about queer women in New France, a subject about which history has been mostly silent up to now.

I consulted literally hundreds of sources for this one, though very few yielded fruit, as it were. I won’t bother with the list of books that helped me with French law or the Compagnies Franches de la Marine, as those are easily accessible and well-known. As for Saint-Michel and his trial, I found only four sources useful:

  • Jugements et délibérations du Conseil souverain de la Nouvelle-France, published by the government of Quebec, volume three, has the complete summary of the trial in old French. There are several events related to the trial, between August and November. The sentencing happens November 12, 1691.
  • A letter from de Champigny to the Minister of the Marine, which was dated November 12 1691, which can be found on the last page of the document linked to this link.
  • Dictionnaire généalogique des familles canadiennes online, the Dictionary of Canadian Biography Online, and The Canadian Encyclopedia Online were all enormously helpful in locating the players in the story.
  • André Lachance’s books about crime and law in New France are especially useful, I found Crimes et criminels en Nouvelle-France to be an excellent resource, especially its introduction.
  • A note to anyone who tries to do further research here, is that there were at least two Seigneurs de Saint-Michel running around New France at this time, and the other — Michel Messier — is now far more famous. Naturally, this can very confusing. Messier de Saint-Michel was a commoner who was ennobled while in New France, and was married into the well-connected Le Ber and Le Moyne families. He spent most of these years serving under La Durantaye, in what’s now Michigan.

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