GROSSLY INDECENT Confronting the Legacy of State Sponsored Discrimination Against Canada’s LGBTQ2SI Communities EXECUTIVE SUMMARY Canada has a tragic history of state sponsored homophobia, bi-phobia and transphobia dating back to Contact and the suppression of the Two-Sprit traditions among First Nations. The criminal law has been, and continues to be, a cornerstone of that oppression. Egale is calling for the federal government to acknowledge the wrongs done to our community and commit to a process to make it right. This social problem has been centuries in the making, and a comprehensive resolution will be complex. We are advocating that Canada emulate the process recently undertaken by the German federal government to rehabilitate the victims of their criminal laws. Central to this process is a mediated negotiation between community stakeholders and organizations led by Egale and the Government, facilitated by the Honourable Frank Iacobucci. We have identified some items that merit consideration during the mediation process that we have envisioned. Without limiting the generality of the foregoing, these items include: 1. An Apology for Canada’s History of LGBTIQ2S Persecution 2. Reform of the Criminal Code’s anti-LGBTIQ2S provisions, including a. Repealing the Ban on Anal Intercourse (s. 159) b. Repealing the Bawdy House Laws (ss. 210, 211) c. Amending Sex Work Laws 3. Reform of Prosecutorial Practices including a. Restricting historic prosecutions of Gross Indecency to ensure parity between Sexual Orientations b. Restricting the prosecution of HIV Non-Disclosure cases under Aggravated Sexual Assault 4. Expungement of Unjust Convictions a. Considering the British and Australian Precedents b. Removal of every single record in every through an expungement act 5. Compensation for Unjust Government Action a. Considering the German Precedent b. Including the Restoration of Military and Bureacratic Pensions c. Including compensation for unjust Criminal prosecutions and convictions. 6. Recognizing and Memorializing LGBTIQ2S Injustice, including a. Rehabilitating indigenous Two Spirit culture. b. Working with provincial governments to ensure queer inclusion, as appropriate, at all levels of the K-12 educational curriculum c. Police, prosecutor and judicial training regarding LGBTIQ2S+ issues and culture generally © 2016. All rights reserved. NEXT STEPS 1. Accept Our Report in Principle This month is Pride Month. Our communities were deeply moved to see our Prime Minister raise the rainbow flag on Parliament Hill for the first time. As he did with the Truth and Rehabilitation Report of Senator Sinclair, we respectfully request that Prime Minister Justin Trudeau accept this Report in principle and to agree to move to phase 2 of implementations on or before July 3, 2016. 2. Negotiate the Mandate for a Mediator and Identify Immediate Action Items We believe that the issues arising out of the Just Society Report are too complex and too multi-faceted to be resolved quickly if they are to be resolved comprehensively and thoroughly. At the same time, we are conscious of the fact that many of the victims of these state-sponsored persecutions are quite elderly and many continue to live in poverty. There may be simple solutions that do not need to await a lengthy process that should be implemented immediately, such as restoring veterans’ pensions to those wrongfully discharged on grounds of homosexuality. We propose Hon. Frank Iacobucci be appointed mediator to resolve the many issues between our communities and the Federal Government. Within 30 days of acceptance in principle, the federal Government should negotiate the terms of Mr. Iacobucci’s mandate and identify the most urgent matters requiring immediate redress. 3. Mediator's Report Within 12 Months The federal Government should bear all reasonable costs of the mediation process. Particular attention should be paid to the German precedent and the Truth and Rehabilitation process in guiding this process. Mr. Iacobucci should deliver his report to the Government within 12 months of his appointment. LGBTQI2S organizations and communities should be empowered to engage in extensive community consultation, and to commission expert opinions and necessary primary research as required. GROSSLY INDECENT ACKNOWLEDGMENTS This Report is submitted to the Government of Canada on behalf of the Egale Human Rights Trust. Egale wishes to thank the volunteer members of the Klippert Committee, the student researchers who assisted them so brilliantly, as well as Ryan Dyck and Kat Horne for providing key administrative support. Thanks also to our team of outside experts and the members of Egale’s Legal Issues Committee who provided feedback on drafts. There were many persons who worked hard to make this report a reality both within and outside of Egale. As is typical of this struggle, most did so without any compensation. Many persons offered helpful advice, as well as useful legal and historical information and images. We appreciate your invaluable encouragement along the way. Egale would like to acknowledge and thank the following persons and organiza- tions, in addition to our outside reviewers mentioned in the appendices: Prof. Irving Abella, Omar Alghabra MP, Kevin Allen, Prof. Constance Backhouse, Cons. Danielle Bottineau, Prof. Dr. Martin Burgi, Brian Crane Q.C., Calgary Gay History Project,, Canadian Lesbian and Gay Archives, Ajay Chopra, Justice David Corbett, Rev. Tom Decker, Michelle Douglas, “Michelle Dubarry” (Russell Alldread), Embassy of the Federal Republic of Germany (Ottawa), Andrew Faith, Dr. Scott Fairley, barbara findlay qc, Phil Fontaine, Dr. Petra Frantzioch, Randall Garrison MP, André Goh, Dr. Neil Guthrie, Hon. Bill Graham, Dr. Helmut Graupner, Rev. Dr. Brent Hawkes, Human Dignity Trust, Hon. Frank Iacobucci, John Ibbitson, Kapil Gupta, Marc Kealey, Hon. Michael Kirby, Dean Robert Leckey, James Lockyer, Chris MacLeod, Frances Mahon, Robert Milkovich, Nicole Nussbaum, Rob Oliphant MP, Joanna Radbord, Prof. David Rayside, Svend Robinson, Todd Ross, Clayton Ruby, Rt. Hon. John Turner, Dr. Paul Vout, We Demand Network, Daniel Wolff, Eddie Ing, Chris K Special thanks to Kathy Griebel, niece of Everett George Klippert, Dr. Rick Klippert, nephew of Everett Klippert, and Sarah Griebel, grand-niece of Everett Klippert, for sharing with us and for supporting this project We also extend our thanks to the entire Klippert family for their love and support of Everett through his ordeal. We wish all members of our communities would know the family love you showed him during his lifetime. REFERENCES & CITATIONS This policy report is based on the text of an academic article containing full refer- ences and citations in the style of the McGill Guide 8th edition. Most citations have been omitted from this version due to their depth and breadth. A copy of the academic report will be available for those wishing to consult our works cited. 4 EGALE Human Rights Trust THE JUST SOCIETY REPORT Chair R. Douglas Elliott, LSM External Reviewers Prof. Constance Backhouse TABLE OF CONTENTS Prof. Brenda Cossman Prof. Simon Stern Clayton Ruby, CM James Lockywer i. Dedication Gary Kinsman ii. Acknowledgments Tea Braun iii. Executive Summary Kapil Gupta Prof. Kristopher Wells Introduction: Starting the Conversation Andre Goh Rob Oliphant MP I. History 15 Andrew Faith Dennis Teman A. Beginnings: Aboriginal and Western Experiences Pre-Contact Kristopher Wells i. Turtle Island: First Nations and "Two Spirits" Marlys Edwardh ii. Europe: Roots of Discrimination Frances Mahond iii. England: Roots of Criminalization Robert Leckey Robert Wintenmute B. Colonial Canada: First Contact Lorraine Weinrob C. 19th and Early 20th Century Canada Committee Members i. 19th Century Gay Life Helen Kennedy iii. Early Criminal Law Prof. Tuma Young v. War Prof. Kyle Kirkup Daniel Girlando D. 1949 - 1969 Social Change and Discrimination Maurice Tomlinson i. First Legal Reform: 1953 Frank Durnford ii. Te Regulation of Gay Life Adrienne Smith iii. Discrimination by Military (discussed further in Part IV) Catherine Wong iv. Two Major Steps Forward: Kinsey and Wolfenden Report Tea Braun v. Changing Canadian Norms vi. Second Legal Reform: 1969 Decriminalization Authors R. Douglas Elliott, LSM II. Te Criminal Code 35 Daniel Hershkop Introduction: "We Demand" Michael Motala I. Private Sexual Ofences (ie. anal intercourse) Maurice Tomlinson II. Public Morality Ofences (ie. obscenity, indecency) III. Sex Workers' Rights Legal Researchers & Editors Madeline Burkhardt-Jones Melissa Belmonte III. Police and Prosecutors 57 Eleanor Wilson Jessica Ho-Wo-Cheong Framing the Problem Sarah Visentin I. Inclusion Within the System for Marginalized Communities Heather Wilson II. Trans, Intersex, and Two Spirited Prisoners Nancy Burton-Vulovic III. Historical Ofences Selena Lucien IV. HIV Non-Disclosure Irma Shaboian Katrina Longo IV. Military and Bureaucracy 70 Sam Zimmerman Homophobia in the Military and Bureaucracy: A Short Summary Cover Art Adam Leger Layout & Graphic Design Michael Motala Legal Issues Committee 5 GROSSLY INDECENT V. International Law 75 A. LGBTIQ Oppression in the Commonwealth i. Reinforcement of British Anti-Sodomy Laws ii. Te Efects of Continued Criminalization iii. Recent Eforts to Repeal Anti-Sodomy Laws B. How Canada Can Defend and Promote Fundamental Human Rights VI. Charter Challenges and Other Actors 81 A. Charter Challenges i. Paradise Lost ii. Paradise Found B. Other Responsible Actors VII. Making it Right 87 An Inclusive and Principled