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.
What crimes are cause the government in Canada set you to death penalty?
Is it rape, treason, and murder?
Hello!
Canada abolished the death penalty completely in 1976, though there hadn’t been an execution since 1962. By that time, it was only murder that could get you the penalty.
In 1869, it was decided that only rape, murder, and treason could get you the death penalty. Prior to 1869, there were 200 crimes that could get you that penalty.
Nice article found your site searching in bing I think you could have taken a more neutral view.
A more neutral view in an article on the end of state-sponsored murder of gay men…?
I like to think that this is an issue that no one considers controversial, though the recent evil laws in Uganda – and their American supporters – suggests that this madness still has supporters in the 21st century.
I gave my readers the benefit of the doubt that they did not see the butchery of innocent gay men as an opinion worthy of equal weight with the idea that we should be allowed to live. That is, I assumed they were not batshit crazy. I feel it’s a helpful assumption to make when writing.
I fully agree with you. I am doing a project for my world issues class based on the sodomy laws still enforced in the middle east compared to the freedom Canadians have. It is hard to hear that people still live under such hateful conditions in countries with laws that make no sense to enforce in the 21st century. This article has helped me a lot and I have quoted you in my project. Thank you for being one of those that is not batshit crazy. People like you shouldn’t be so hard to find.
Hi Carly!
No problem, and I’m glad I was able to help.
There’s been an upsurge in homophobic Christian nationalism in both Canada and the States, and they are unfortunately very comfortable with the idea of the death penalty for us. A recent law proposed in Uganda that includes the death penalty seems to have been largely written by a US evangelical organisation known as the C-Street Fellowship (or just the Fellowship). They seem to be experimenting with Bible-based laws in a country with a weaker constitution.
In Canada, the movement for Christian fascism or Christian theocracy is called Dominionism, and I’ve been reading up on it. They want Canada’s laws to be based on the Bible, and they’re nostalgic for the days when being gay was illegal.
I’d write them off as fringe lunatics, but many Conservative MPs have ties to their movement, and Stockwell Day is one of their leaders. And their power is growing, not shrinking, and I have little doubt they’d bring back the death penalty if they could.
Let’s hope they never get the chance.
Regarding the comment by c. nairn, which was submitted 10 years ago., I;m glad The Drummer’s Revenge kept the comments.The response by Hamish is completely informed. Unfortunately through the years, too many Canadians since 1869 did not get the memo about the abolition of the death penalty for gay men.So annually there have been hate based murders of gays and in the USA, continued support for the extermination of gays.Examples : As a Canadian resident of San Diego for 9 years during the early years of the AIDS epidemic, I remember the fierce lobbying by fundamentalist groups in opposition to the use of any public funds (tax dollars) for research into the lethal mysteries of the retrovirus HIV. The ensuing delay in the development of effective treatment options denied thousands even a fighting chance at survival.I know. I watched helplessly as most of my close friends passed away. Jumping ahead to the recent past, …..following the mass shooting at a gay nightclub in Orlando, Florida, a prominent Baptist pastor in Sacramento, Ca., expressed disappointment that more hadn’t been killed, and stated his hope that those hospitalized , not recover. Several pastors in the deep south echoed his sentiments.
Thank you for writing this, holy hell. I’m doing a project on LGBTQ rights in Canada throughout the years, and this is the ONLY good source I could find on anything past 1900 that had any detail. Thank you so much, I’m so grateful to you