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Section 159 of the Criminal Code
Section 159 of the Criminal Code prohibits engaging in anal intercourse, except by a husband and a wife or two persons who are both 18 years or older, provided that the act is consensual and takes place in private.
The maximum penalty is 10 years imprisonment when convicted on indictment or six months imprisonment on summary conviction.
Section 159 captures consensual anal intercourse in certain circumstances. For example, the offence prohibits consensual anal intercourse involving 16- or 17-year-old unmarried persons even though persons of that age may consent to all other forms of non-exploitative sexual activity.
Consensual anal intercourse is treated differently than all other forms of consensual sexual activity. Four appellate-level courts and two trial-level courts have found that section 159 of the Criminal Code violates equality rights guaranteed by section 15 of the Canadian Charter of Rights and Freedoms on the basis of marital status, age and sexual orientation.
The Minister of Justice will table a Charter Statement outlining Charter concerns with section 159 of the Criminal Code and the Charter rights, freedoms and values promoted by the proposed legislation.
The proposed legislation would repeal section 159. This would prevent charges being laid against persons aged 16 and over who engage in consensual anal intercourse.
Non-consensual sexual activity
Other provisions in the Criminal Code capture all non-consensual sexual activity, ranging from fondling to vaginal or anal penetration.
Age of consent
The age of consent to all forms of sexual activity is 16 years. In certain circumstances, such as where there is a relationship of trust, dependency or authority, or the relationship is otherwise exploitive of a young person, the age of consent is 18 years.
Anal intercourse was originally prohibited by the "buggery" offence, which was included in Canada's first Criminal Code in 1892.
The Criminal Code was amended in 1969 to decriminalize consensual anal intercourse between a husband and wife, or between two people who were each over the age of 21, as long as the activity was consensual, did not occur in a public place and no one else was present.
In 1988, the "buggery" offence was re-named "anal intercourse" and the applicable age of consent was lowered from 21 years to 18 years of age, where it stands today.
In contrast, the sexual offence reforms that took place in the 1980s repealed all other act-specific sexual offences and replaced them with offences that focus on consent and the level of harm involved.
Department of Justice Canada
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Hon. Jody Wilson-Raybould Justice Canada Law
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