Gay rights groups are calling out Canada’s criminal code for what they say is a discriminatory law.

The code sets the age of consent for anal intercourse at 18, two years higher than for vaginal sex. The law also states that only two people may be present during the act and classifies non consensual anal sex separately from sexual assault.

Egale, an organization that fights for equality for LGBTQ people, wants to see this section of the code repealed.

In June, Egale’s Just Society Committee and the We Demand an Apology network sent reports to parliament that addressed the law.

“There’s really no justification for treating anal intercourse differently than any other kind of sex. It’s just a sexual act like any other. It ought to be subject to the same rules,” says Douglas Elliot a constitutional lawyer who served as coordinator of the report from Egale.

Andrew Gowing, a media relations official for the Department of Justice, says a number of courts have found the law to be unconstitutional and changes to the law are being carefully considered.

Improved training

While the law has been deemed unconstitutional, people are still being charged Elliot says.

A survey of Canadian police, conducted by Egale, found that there is no training on how to deal with anal sex offences.

“They look it up, it’s still in the books and so they charge people,” Elliot says.

But it isn’t only police who remain unaware.

Recently, a Justice of the Peace told Elliot that no one told her the law was declared unconstitutional.

“If a police officer came to me and presented this charge I would accept the charge because it’s still on the books,” she told Elliot.

“That’s why it needs to go,” he says.

The most recent crime data from Statistics Canada shows 26 adults and 12 youths were charged with anal intercourse from 2010 to 2014.

“We need to improve training of police and prosecutors so people don’t get charged with these archaic offenses,” Elliot says.

Recorded incidents of anal intercourse from Statistics Canada’s most recent crime data

 

Location breakdown of recorded incidents of anal intercourse

 

Constructs homosexuality as a threat

Gary Kinsman from the We Demand an Apology network is also working in the fight against what he says is a homophobic law.

Kinsman says the law constructs homosexuality as a threat to young people and sends a negative message to young men coming out.

“The message it sends to young men who are starting to come out as gay or bisexual or whatever, is that the sexual activities that they might want to engage in carry with them the risk of criminalization.”

No official commitment 

Egale’s report asked the Prime Minister to implement a three stage course of action by Pride Day on July third.

In an interview with Daily Xtra, Prime Minster Trudeau says the government will be moving forward with addressing the different age of consent for anal sex.

Elliot says this is a good first step but the report they’ve submitted urges for a more comprehensive approach to rid the criminal code of all its homophobic provisions, cancel the record of those convicted and do something to make good what has happened.

Prime Minster Trudeau issued a statement saying he is prepared to work with the groups to end discrimination.

Elliot believes the Prime Minster’s statement is sincere.

“I personally saw him at Toronto Pride in July. You could tell that he was enjoying himself,” Elliot says, “I don’t think there is a homophobic bone in his body.”

But Kinsman says so far there has been no official commitment from the government even to equalize the age of consent.

“I’m very impatient,” Kinsman says, “They should have made these changes a long time ago and I’m certainly hoping they happen as soon as possible”