Stuart Chambers. Journal of Homosexuality. Volume 57, Issue 2. 2010.
Pierre Elliott Trudeau and Bill C-150
A Look Back at Progressive Public Policy
It has been 40 years since homosexual acts in Canada were decriminalized under Pierre Elliott Trudeau’s Liberals. Trudeau was prepared to identify himself and the Liberal Party as forces within Canadian politics that could separate moralism from legalism. Trudeau aside, the Liberals and their supporters did not take an amoral stance with concern to same-sex acts. They simply embraced alternative measures for treating such behavior (i.e., reparative therapy). In politics, the degree matters, and the Liberals were less likely to depict sexual immorality as criminal compared to their political opponents.
As Justice Minister in 1967, Pierre Trudeau tried to modernize the Criminal Code of Canada, but his first attempt—Bill C-195—died on the Order Paper during the 1967-1968 Session (the 2nd Session of the 27th Parliament). Reintroduced in December of 1968 (the 1st session of the 28th Parliament), the newly revamped Bill C-150 contained many of the same traits as its predecessor. This time, however, Trudeau had taken over as prime minister from Lester B. Pearson, appointing John Napier Turner as his new justice minister. From 1968 to 1969, the liberal government’s legal position toward homosexual acts began to evolve toward the classical liberal human rights perspective characteristic of John Stuart Mill. What Trudeau and the Liberals were proposing was the modernization of the country’s laws through the separation of church and state. In fact, Trudeau’s government was offering Canadians a distinct choice between a moral or secular position. It could have been political suicide when one considers the orthodox view of homosexuality at the time. The American Psychiatric Association did not strike homosexuality from its Diagnostic and Statistical Manual (DSM) as a pathological disease until 1973 (see Bayer, 1987; Isay, 1996). The United States still criminalized sodomy in the majority of state jurisdictions (Shilts, 1982). Likewise, the Stonewall Riots did not occur until the summer of 1969. American gay liberation—namely, the formation of the Gay Liberation Front (GLF) and the Gay Activists Alliance (GAA)—post-dated Bill C-150. Organizations such as the Canadian Lesbian and Gay Rights Coalition (CLGRC), Equality for Gays and Lesbians Everywhere (EGALE), Gays of Ottawa (GO), and the Community Homophile Association of Toronto (CHAT) did not become major forces themselves until the 1970s and 1980s. Last, a large majority of Canadians still found homosexual behavior to be repulsive and immoral (Smith, 1999; see also Warner, 2002). It had been a bold move to enter politics on such a controversial note. Trudeau (1993) risked his own party’s chances at re-election that same year. Under these conditions, it appeared that the passage of Bill C-150 was unlikely.
How, then, did Bill C-150 become an act of law in such a context? This article will argue that Trudeau was actually swimming largely with the current, that being the rise of more liberal, rational attitudes toward sexuality in the modern era. Although Trudeau’s stance on homosexuality may have been amoral, members of his party still perceived homosexuality to be immoral, based largely on preconceived notions of Judeo-Christian natural law. What separated the Liberals, however, from the Conservatives, the Social Credit Party, and the Ralliement Créditistes was a stronger conviction that sexual immorality should not be punished criminally. In other words, positive law should trump natural law in matters of private morality.
We will begin, then, with three major influences that helped shape the making of Bill C-150: the Kinsey (1948) studies, the Wolfenden Report, and Klippert v. The Queen (des Rivieres & Shipley, 1967). These events will be followed by an analysis of Trudeau’s own views on morality and social justice as well as the Debates of the House of Commons ([Debates] 1967a, 1967b, 1968, 1969a, 1969b, 1969c, 1969d, 1969e). The debates will specifically outline the struggle that existed between legalism and moralism in Canadian federal politics. Accompanying this will be the moral judgments made by all political parties, including the Liberals, depicting homosexuality as a “problem” in need of a “cure.” Media reaction to the successful passage of Bill C-150 will also be highlighted followed by a summary of the Trudeau legacy.
American and British Influences on Bill C-150
The Kinsey Studies and The Wolfenden Report
In the 1940s, American sexual politics was dominated by one researcher: Alfred Kinsey. His book Sexual Behavior in the Human Male (1948) overturned centuries of religious taboos and Victorian morality, bringing sex to the forefront of public debate. Kinsey showed that Americans as a whole participated in “unnatural” sexual acts. He found that 92% of the total American population engaged in masturbation, which was, thus, almost universal in nature. What made his book controversial, however, was the emphasis on homosexual acts between men. Even more worrisome for middle-class America was the fact that at least 37% of the male population had some homosexual experience between the beginning of adolescence and old age. Kinsey’s 10% figure was more commonly coined for homosexual exclusivity (rating of 5-6 on the continuum). More precisely, 8% of males engaged exclusively in same-sex acts (rating 6) for three years between the ages of 16 and 55, and 4% engaged exclusively in same-sex acts for life (rating 6). These references to the White male population’s behavior soon became an affront to White-Anglo-Saxon-Protestant (WASP) values.
Kinsey’s (1948) scientific data was then examined for its social implications. What is most interesting is how laws were ineffective as a deterrent. Despite the severity of the potential penalties, homosexuality existed on a large scale. More shocking was the projected cost of future arrests. If Kinsey’s statistics were to be taken at face value, almost 40% of the American male population would have to be incarcerated. Therefore, Kinsey’s contribution to sexual research cannot be overstated. He purposely used science to vie with religion over intimate matters. Undoubtedly, his results supported secularism, a nonreligious philosophy that struck at the heart of moralism. He even suggested that laws could be reshaped according to scientific data. One of the more important conclusions of his research was that “crimes against nature” should not be considered criminal (Mondimore, 1996). Such radicalism truly earned him contempt in religious circles. In fact, American evangelist Billy Graham would accuse Kinsey “of doing more to undermine morality than any other American…” (p. 13). More importantly, however, Kinsey forced moralists to admit that homosexuals and lesbians actually existed. As we shall see, Kinsey’s liberal defense of homosexuality would have a strong influence on Canadian sexual politics by the 1960s.
In the 1950s, the United Kingdom was also beginning to question its own sexual policies. In 1957, the Wolfenden Report rejected the notion that homosexuality was pathological. Moreover, the Wolfenden Committee had found no significant evidence to contradict Freud’s conclusions five decades previous: “Homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects” (British Medical Association Council, 1955, p. 41). In other words, it was the perception of disease that plagued gays, not any inherent pathology. Instead of homosexuality being labeled as abnormal, social prejudice was viewed as more likely the root cause of any psychosis. The committee’s conclusion: “It has been suggested to us that associated psychiatric abnormalities are less prominent, or even absent, in countries where the homosexual is regarded with more tolerance” (p.32). Furthermore, the committee made a clear distinction between pathology and deviation in basic human traits: “[A] genetic predisposition would not necessarily amount to a pathological condition, since it may be no more than a natural biological variation comparable with variations in stature, hair pigmentation, handedness and so on” (p. 32).
In the end, the committee presented two recommendations. First, homosexual behavior between consenting adults in private should no longer be a criminal offense. Second, questions relating to “consent” and “private” should be decided by the same criteria that applied to adult heterosexuals: (a) to preserve public order and decency and (b) to provide sufficient safeguards against exploitation and corruption of others, particularly the vulnerable, young, weak, inexperienced, or dependent (British Medical Association Council, 1955, p. 23). The fear that homosexual acts were a threat to society’s moral health or that civilizations would be destroyed due to moral decay was rejected. In the committee’s words: “We have found no evidence to support this view, and we cannot feel it right to frame the laws which should govern this country in the present age by reference to hypothetical explanations of history of other peoples in ages distant in time and different in circumstances from our own” (p. 44). From a legal perspective, communal disgust with homosexual acts was of secondary importance to the issue of civil liberties. The committee elaborated: “Many people feel this revulsion…But moral conviction or instinctive feeling [intuitionism], however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behavior of this kind” (p. 44). In terms of private conduct, adults simply had to monitor their own adult decisions.
To say this is not to condone or encourage private immorality. On the contrary, to emphasize the personal and private nature of moral or immoral conduct is to emphasize the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law. (p. 48)
In just one decade, Wolfenden would have a measurable impact on British law, as it led to the passing of the Sexual Offences Act in 1967. The decriminalization of same-sex acts between adults in private was now a reality (Kinsman, 1996). These rational, libertarian concepts would not be lost on Pierre Elliott Trudeau. According to the Trudeau liberal government’s own admission within the House of Commons, it relied heavily on Wolfenden for its own sexual policies ( Debates, 1969c, p. 7667). Bill C-150 was, in actuality, a derivative of its British cousin. This, along with a precedent-setting Canadian legal matter, would eventually steer Trudeau toward the rhetoric of a more just society.
Decriminalizing Homosexuality in Canada
Klippert v. The Queen
Well documented in the Debates of the House of Commons from 1968-1969, the Supreme Court of Canada case Klippert v. The Queen was significant for three reasons: It was an important demonstration of conservative social injustice, it changed forever politicians’ views on homosexuality as criminal, and it highlighted the heterosexism of Canadian society during the 1960s. The appellant in the case, Everett George Klippert, was appealing to the Supreme Court of Canada on the ground that he should not be held indefinitely as a dangerous sexual offender. To demonstrate how redundant the law had become, no one in Canada had been convicted of an act of buggery between consenting adults since 1953 (Debates, 1969c, p. 7605). The circumstances of the case appeared straightforward: same-sex acts occurred between consenting adults in private, no one had been injured, and no one was likely to suffer harm in the future (des Rivieres & Shipley, 1967).
The psychiatric testimony was more indicative of the anti-psychiatry movement at the time. Dr. Ronald Griffith McKerracher and Dr. Ian McLaren McDonald argued that Klippert’s homosexual preference was normal to him. Dr. McKerracher described Klippert’s innate sexual preference, stating that he “found the thought of heterosexual conduct abhorrent” and had “never had heterosexual relations” (des Rivieres & Shipley, 1967). Dr. McKerracher was adamant about one point: “I do not feel the accused showed any evidence that he would behave in a violent fashion” (p. 827). The second testimony provided by Dr. McDonald was in line with Kinsey’s observations in the 1940s and the Wolfenden Report in the 1950s: Homosexual acts were apparently natural for some individuals. Stated Dr. McDonald: “[Klippert] said that he had no desire to partake in heterosexual activity. He said this filled him with revulsion, as I believe his words were ‘some people are revolted at the idea of having heterosexual relations’” (pp. 828-829). Dr. McDonald clarified any misunderstanding that Klippert would change. He testified that the defendant was always careful to ascertain if the person he approached was gay, and if he was not, he did not pursue the subject. Therefore, he was primarily a homosexual, was unlikely to refrain from his past actions, and posed no threat to injure or coerce others. Klippert was not going to seek out youthful partners but would continue to seek out consenting adults. The psychiatric testimonies, however, did not result in an acquittal.
Because of Klippert’s indefinite incarceration, it was none other than New Democrat Tommy Douglas who suggested in 1967 that Trudeau set up a commission similar to Great Britain’s Wolfenden Committee. While Douglas was seeking the same enlightened recommendations found within the Wolfenden Report (Debates, 1967a), Trudeau recognized an opportunity to separate legalism from moralism.
Pierre Elliott Trudeau
His Ideological Stances on Morality and Social Justice
At the centre of Pierre Elliott Trudeau’s (1993) ideological stance was personalism, a radical Catholic doctrine that promoted the supremacy of persons; they alone were seen as the only moral entity, individuals who simply required the social, political, and economic means for them to exercise freedom of choice. For Trudeau, “the individual…must be supreme, with basic rights and freedoms, because the individual is the only moral entity, the only one who has significance” (as cited in Graham, 1998, p. 5). What Trudeau deemed as a direct threat to personalism was moralism. One of his goals was to prevent the dominance of religious impulses over rational impulses (Christiano, 1994). At a young age, he already comprehended the importance of one’s conscience being in charge of one’s morality. “I don’t think [the command aspect] is one that is necessarily part of Christianity. I don’t like religions that make people do things because the Commandments say to do them. I would like religion to be the inner thing which commands you” (as cited in Stuebing, Marshall, & Oakes, 1968, p. 28). His future initiatives, therefore, “widened the separation between church and state, and they reflected his antipathy for state-imposed ideologies and moralities and their attendant behaviors” (as cited in Cohen & Granatstein, 1998, p. 264). As Trudeau himself admitted in 1969, “You may ask forgiveness of your sins from God, but not from the Minister of Justice” (as cited in Donaldson, 1994, p. 246).
Trudeau realized that there must be a separation between morality and law so that the latter can perform its primary function: the protection of citizens from harm in order that they experience a maximum of freedom. In his words: “The ‘just society’ means…the creative use of the law. It means freeing the individual from outmoded shackles of the law in order that he be able as an individual to use his freedom to express himself as he sees fit within the broad definitions of public order and morality” (as cited in Harbron, 1968, p. 99). The cross-reference to homosexuality would not elude Trudeau. He realized that heterosexual hegemony had run its course. Trudeau adopted then what John Turner (Personal interview, July 16, 2002) called the classic liberal stance: “to advocate the widest scope in personal choices subject to collective responsibilities to protect those who cannot protect themselves.” As Trudeau admitted, “I believe in the necessity of state control to maximize the liberty and welfare of all, and to permit everyone to realize himself fully….For humanity, progress is a slow journey toward personal freedom” (as cited in Somerville, 1978, pp. 197-198). By the spring of 1968, Trudeau’s stance with respect to sexual politics was clear. Speaking to separatist protesters, he declared: “Here’s one that thanks me—he’s a homosexual…You don’t have to tell us you are a homosexual. That is your business and it doesn’t interest me. What does interest me is that the citizens of this country should be ready to respect freedom and distinguish between sin and crime” (as cited in Stuebing et al., 1968, pp. 162-163). In 1969, just prior to the passage of Bill C-150, Trudeau (1972) shared his views with Washington political élites. “We have amended our criminal laws to permit more freedom to individuals to engage in [sexual] acts which, sinful though they may be or appear to many, are not possessed of that injurious quality that we normally associate with criminal conduct” (p. 4). Despite Trudeau’s optimism, the impact of Bill C-150 would eventually divide Canadian politics between liberal secularists and conservative moralists.
The Debates of the House of Commons
Natural Law and Positive Law Collide
Trudeau had handed the Justice portfolio over to John Turner and, in 1969, it was Turner’s job to sell the clause “homosexual acts in private between consenting adults” to the House. Like Trudeau, John Turner supported the separation of church and state even though at the time he personally felt that homosexual acts were immoral. For Turner (Personal interview, July 16, 2002), though, consensual sex between same-sex adults was strictly a legal matter. This is what separated the Liberals from the more conservative-minded members of the House. Even if some Liberals were disgusted by homosexuality personally, they could separate the legal issue from the moral one. In fact, Turner wanted everyone to know who the architect was of Bill C-150’s philosophical foundation. “The bill is identified and will be identified in the future, with the indelible imprint of the prime minister (Mr. Trudeau). It was he who had the courage to assemble it, to introduce it into Parliament and to defend it across the land under the scrutiny of a general election” (Debates, 1968). In front of the Justice committee in March 1969, Turner made a clear distinction between Liberals and Conservatives (see also Justice and Legal Affairs, 1968-1969, Vol. 7):
Briefly it is that we believe that the law and morals are two separate philosophical propositions…and that there are aspects of human life and relationships between people, which, although on the basis of subjective judgement in a pluralistic society might well be considered to be immoral, ought better be left to private morality than subject to public order within the strictures of the criminal law. (Justice and Legal Affairs, 1968-1969, Vol. 14)
Decriminalization did not necessarily mean moral condonation. Following the tone set by the Wolfenden Committee, Turner stated: “In seeking enactment of the proposed amendment, the Government is not, of course, asking Parliament to place its stamp of approbation on the activity which will no longer be criminal if it takes place under the circumstances prescribed [consenting adults in private]” (John N. Turner, personal communication, March 13, 1969).
In truth, members from both the liberal and conservative camps viewed the illegality of homosexual acts as futile and unenforceable. The cost of incarceration, no doubt, worried politicians in 1969. Paraphrasing Kinsey’s (1948) statistics in the House, John Turner understood that they would never be able to police widespread behavior. As Turner admitted, “Kinsey’s figures indicate[d] that homosexuality [was] not a problem confined to a tiny group of perverts but one of much wider social significance” (Debates, 1969a, p. 4747). One of the most outspoken members of the parliament was Liberal Robert P. Kaplan. He was a vocal opponent of indefinite prison sentences awarded to people like Everett George Klippert.
…[O]ur government has been holding in prison under an indeterminate or life sentence, confirmed by the Supreme Court of Canada, one Everett George Klippert…Mr. Klippert’s only crime or criminal conduct was the commission of homosexual acts in private by consent and without violence with male adults. For this he may spend the rest of his life in prison. (Debates, 1969a, p. 5391)
John M. Read (L, Kenory-Rainy River, Ontario) concurred, adding that the public would only obey laws they consider reasonable. “I believe … that these laws are unenforceable. In other words, the legislation relating to homosexuals has not been enforced. The number of convictions is almost nil … In other words, you cannot have legislation that is not enforceable, because then the law becomes a laughing stock” ( Debates, 1969b, p. 5946). Gordon Ritchie (PC, Dauphin, Manitoba) admitted that prison would never solve the problem; the government was looking at a no-win situation with a toothless law. Stated Ritchie: “I do not believe that homosexuality is deterred by criminal proceedings, and I think that in practice homosexuality cannot be controlled in this manner” ( Debates, 1969a, p. 5500).
The Debates, however, became increasingly polarized between first and second readings. The pro-reform camp included the liberals, the New Democratic Party, and some conservatives whose rationale was based largely on the Kinsey studies, the Wolfenden Report, and the Klippert case. The anti-reform camp was made up of the Ralliement Créditistes, the Social Credit Party, and the bulk of conservatives. In the winter of 1969, former Prime Minister John Diefenbaker attempted to solidify both his own personal and his party’s position as defenders of morality. Diefenbaker challenged Trudeau’s liberalism head on: “We live in an age that more and more is becoming a permissive age. Some say there is no God—that each man should be able to live his own life as he will as long as he does so in private. I do not find any support for that philosophy in the scriptures” (“Just What Some Members of Parliament Said,” 1969, p. 61). Diefenbaker’s remarks best describe the conservative paranoia of the times. In his mind, the immorality of homosexual acts was a threat to national security. “I have read the entire Wolfenden commission report backward and forward. I know there is no individual more subject to intimidation and threat by the U.S.S.R. as it endeavors to obtain information detrimental to the security of Canada than those who are believed to be homosexuals” ( Debates, 1969a, p. 4838).
Although deputy leader for the federal New Democratic Party, David Lewis, acknowledged John Diefenbaker’s contributions to democracy, he strongly believed that Diefenbaker was selective as to whom he included in the democratic ideal. Lewis felt that Diefenbaker’s remarks were “a complete contradiction and negation of the great work he has done in the field of civil liberty and individual rights.” He also depicted the Chief’s philosophy as outmoded: “It simply has no relevance to modern society,” said Lewis. (Debates, 1969a, p. 5410-5411). In retrospect, John Turner (2002) would call the Chief’s remarks “pure drama”.
By the spring of 1969, the rhetoric became more intense. It was imperative for the conservatives to separate themselves from liberal “degeneracy” and to act as the guardians of morality. As a result, the Debates became a forum for various degrees of personal outrage. Marcel Lambert (PC, Edmonton West, Alberta) wanted the House to understand the moral dilemma at hand. He asked: “Do we say that we are not concerned about morals and that we are going to remove legal sanctions against immoral conduct?…” (Bain, 1969, p. 57). Likewise, Walter Dinsdale (PC, Brandon-Souris, Manitoba) described the decriminalization of homosexual acts as an affront to the history of Christianity: “We are reversing completely values and traditions which have been the foundation stone upon which our western Christian civilization has been established…The Judeo-Christian ethic says nothing is right unless it helps somebody. Actually, what we are embracing is the Mohammedan philosophy of hedonism” (“Just What Some Members of Parliament Said,” 1969, p. 57). Robert McCleave (PC, Halifax-East Hants, Nova Scotia) felt that the existing law provided a direction for moral guidance that was sorely lacking in the late 1960s. “People have to have a sense of what is right and proper in society and they must feel that there is an expression of this in the law” (Zink, 1969a, p. 64) Percy Verner Noble (PC, Grey-Simcoe, Ontario) attacked Trudeau personally as a man incapable of understanding the responsibilities associated with parenthood. Speaking in the House of Commons, he declared: “[Trudeau] is not a family man, and he does not seem to understand that children do look to their parents for leadership and direction….We cannot justify the repudiation of our responsibilities to our young people, to older people, too, and to generations which will follow” ( Debates, 1969a, p. 5502). George Valade (PC, Saint-Marie, Ontario) was vehement that community morality was at a crossroads. “The impact of this (measure) will result only in debasing our society which is going through a conscience crisis” (Zink, 1969a, p. 64).
Progressive Conservatives received support from the Social Credit Party out West and les Ralliement des Créditistes in Quebec. Both parties shared features—rural roots, anti-socialist attitudes, and a dislike for liberal ideology (Van Loon & Wittington, 1971). During the Debates, politicians such as Gilbert Rondeau (SC, Shefford, Quebec) feared that homosexual unions would eventually be state sanctioned: “Before long,…we will have to legalize homosexuality, and soon afterwards, we will also have to pass legislation in order to legalize marriage between homosexuals (Laughs)” ( Debates, 1969a, p. 5508). Trumpeting a consensus on moral conduct, René Matte (RC, Champlain, Quebec) asserted in the Globe and Mail that “true [m]orality is for everybody. It is not merely a question of religion but a question of being a human person, of respecting the human person” (Bain, 1969, p. 57). Matte felt strongly that society should condemn all 21-year-old homosexual men who celebrate their birthdays by “jumping into the arms of the blue-eyed boy of their dreams” (“Just What Some Members of Parliament Said,” 1969, p. 61). André Fortin (RC, Lotbiniere, Quebec) proclaimed that, in his opinion, “the bill is criminal, stupid, and socialistic. It was another blow at the Canadian family” (Dief, Lewis Cross Words,” 1969, p. 63).
Hard-line conservatives then resorted to polemic. Eldon Wooliams (PC, Calgary North, Alberta) compared a human sexual act with bestiality. Inquired Wooliams: “Do you want me to legalize sexual intercourse with the animals of Canada?” (Bain, 1969, p. 57). Homosexuals were also labeled as pedophiles. Martial Asselin (PC, Charlevoix, Quebec) described gays as stalkers of youth: “Homosexuals are most inclined to pervert youngsters and the Minister [Turner] opens the door even wider” (Bain, 1969, p. 57). In fact, PC member Walter Dinsdale even depicted a possible sexual pandemic: “Anybody who has been engaged in social work knows that the homosexual is a predator in respect to matters of sex. It is something that spreads like a plague, and there is no more destructive drive than the sexual impulse running wild” (Zink, 1969a, p. 64). Walter C. Carter (PC, St. John’s West, New Brunswick) believed that homosexuals would convert others to their lifestyle: “[T]he real reason for its [homosexuality] being anti-social is the compulsion to convert, to induce others into its practice. In those nations where homosexuality has raged unchecked, conversion has been a major characteristic, to the point where generations of those unable to make free choice have been compelled into unnatural practices” (Debates, 1969a, p. 5410-5411).
The disease model for homosexuality also influenced the tone of the Debates. Politicians of all stripes—including the liberals—believed that homosexuality was not preferable to the “norm” and still required a “solution,” albeit not incarceration. Although gay liberation activists in North America had begun to reject reparative therapy by the late 1960s, the fact that homosexuality could be labeled “pathological” allowed politicians from all parties to be more empathetic. They were following the orthodoxy of the scientific priesthood, socialized to believe that homosexuality was a mere habit that could be broken. Even if the Liberal Party did not fully understand the larger social ramifications of the disease model, ironically its embrace helped to present homosexual acts in more favorable terms. Turner, thus, drew sympathy for Bill C-150 by maintaining references to pathology while simultaneously eliminating the criminal connotation. “I want to say that the basic principle of this matter should be that private aberrations or illnesses should not become public crimes. If they are made into public crimes, they open the door to blackmail without providing a cure of the disease. They add to the human misery which can flow from this affliction” (Debates, 1969a, p. 5479). Caught between treatment of a “sickness” and imprisonment, Liberal Douglas Hogarth sided with the former. “Although the homosexual’s affliction is not the same as the alcoholic’s in kind, it is in substance. The homosexual has no control over his behavior. He is either born that way or develops his sickness at an early age. He cannot change apparently; so why not put him in jail? If anyone were to say about homosexuals, ‘Put them in jail’ they would be advocating taking a step back into the dark ages” (Debates, 1969a, p. 4886).
Members from the various federal parties shared Turner’s psychiatric assessment of homosexuality in varying degrees. The New Democratic Party’s David Lewis himself was a product of his time. Although he previously criticized Diefenbaker’s conservative orthodoxy, Lewis would not fully sanction homosexual acts even if the law decriminalized such behavior. “I hope the people of Canada understand and know that those of us who are supporting the amendment in respect of homosexuality are just as repelled as they are by that act. We are just as anxious to make clear that it is an immoral and undesirable act, but we think the time has come to modernize the law” (Zink, 1969a, p. 64). Moreover, Lewis was first and foremost of the opinion that sympathy towards gays and lesbians should require government action; the disease model could facilitate such an approach. “[T]o make [homosexuality] a crime in all cases is to be insensitive and cruel because this deviationism [sic] obviously is due to certain psychological and other factors. This behavior requires clarity and treatment rather than criminal prosecution” (Debates, 1969a, p. 4760). Even Créditistes Gerard Laprise capitulated with this uneasy compromise. “Granted, [these] sick…are not all criminals, even if a great number of them should be behind bars because of the scandal they cause; but instead of trying to legalize an abnormal situation, we should adopt legal measures to reduce the number of those sick people through appropriate treatment” (Bain, 1969, p. 57).
Support from sympathetic conservatives began to slowly germinate. Even those who equated homosexuality with an addiction had dismissed incarceration. Robert McCleave felt that prison would not solve the growing homosexual “problem.” In his words: “I probably would not see it either in terms of crime or punishment but in terms of disease or pathological complaint…I think [alcoholism and homosexuality] are very much the same type of problem. I think it is wrong to deal with them as crimes….” (Debates, 1969a, p. 4762). Roch La Salle (PC, Joliette, Quebec) was persuaded to side with the Trudeau government on the condition that more resources be spent on the medicalization of homosexuality. Addressing the House, La Salle requested a more moderate approach. “It is recognized that homosexuals are probably sick people….Therefore, I would like to suggest the building of certain hospitals where the government would do its utmost to provide the services of certain specialists, who could take care of such people whose behaviour, to me, is completely abnormal” ( Debates, 1969a, p. 5494). Last, Conservative Theogene Ricard combined the notion of vice with the disease model. He felt that it was “not necessary to legalize homosexuality, but that it [was] imperative to cure those afflicted with such a sinful disease” (emphasis added; Debates, 1969a, p. 4388).
By the summer of 1969, opposition parties made one final attempt to discredit the bill. The Ralliement Créditistes kept the moral debate alive by providing a religious motive for their opposition to Bill C-150. “During the debate on the omnibus bill, it was a matter of principle. We had the duty, as Christians, to oppose it” (Debates, 1969d, p. 11030). The Créditistes made one last moral plea in exchange for their party’s support: “Remove from the bill the provisions on…homosexuality, and we shall immediately vote for this legislation…” (p. 110033). A filibuster by the Créditistes failed to generate the necessary public, media, or political support and only made their anti-reform stance appear increasingly rigid (Zink, 1969b; see also “Fillibuster by Créditistes,” 1969; “Créditistes Expected to Force Long Debate,” 1969). The successful passage of the bill occurred on May 14, 1969, by a margin of 149 to 55, and became law in August of that year (1969b, p. 7759).
Bill C-150 and the Press
A Consensus Reached by the Media
Media support certainly assisted Trudeau in his quest for the liberalization of homosexual acts. In fact, it was overwhelmingly in favor of modernizing the law. The Ottawa Citizen rejected indefinite sentences for homosexual acts between consenting adults in private, embracing instead a progressive mandate. “[T]he government’s platform of action in the realm of social legislation is a proud one, and deserves to be welcomed by all forward-looking Canadians regardless of politics” (“Changing the Law,” 1967, p. 33). Trudeau was also praised for his vision in anticipating the arrival of a more secular society. The editorial board of the Ottawa Journal felt that “Trudeau [had] recognized the mood of the country for improving the laws…and [had] put his own courage to the matter in many instances, not least in his own province. Liberty needs aids and restraints—but they need not be out of date” (“Amending the Code,” 1969, p. 36). The Journal also recognized Trudeau’s efforts at balancing individual rights with the common good. Consequently, personalism was given credence. “[A]s [the codes] stand they would seem to remove more restrictions than they impose, while also adding needed protection for the public in certain respects. In general terms, that is a desirable direction in which to move” (“Criminal Code Amendments,” 1967, p. 35).
In Quebec, media support was also favorable. In the Montreal Star, Trudeau’s proposal for the decriminalization of homosexual acts was deemed empathetic. “[I]t does seem evident that a contemporary compassion has been brought to areas of the law which had, with the passage of time, become cruel social anachronisms” (“Justice Moves with Understanding,” 1967, p. 34). The Star was indeed scathing of a legal system that, in its mind, was simply outmoded. “The Criminal Code is [such] a mixed bag of Victorian morality, sloppy logic and legal temporizing that any reform is apt to be hailed as the dawn of the millennium” (“Only a Beginning,” 1967, p. 39). Likewise, Trudeau’s mantra of “reason over passion” was summarized by the Montreal Star: “But it is a curious fact that the last time the opposition [Ralliement Créditistes] exercised its power to hold up legislation by filibuster, it was trying its best to prevent an extension of freedom…By decreeing that it would no longer imprison homosexuals for acts committed in private…the government achieved a modest but genuine increase in human liberty” (Debates, 1969e, p. 11602).
By the winter/spring of 1969, Bill C-150 was receiving abundant press coverage. Support only strengthened for the growing secular values of Canadians. Toronto’s Globe and Mail felt that Trudeau had defended liberalism against moralism. “[Trudeau] was saying that there is a difference between public morality and private morality, and that the state has no business dictating the conduct of individuals when that conduct injures nobody else. He was saying that the moral or religious views of one group shall not be imposed on another” (“It Was a Great Day,” 1969, p. 53). By May of 1969, the Toronto Telegram agreed with Trudeau’s liberal stance—specifically, his ideological stance on personalism—when it described the secular/religious dilemma within law.
But the Bill [C-150] constitutes a milestone in our change of philosophy on the relationship of law and morals…Parliament’s decision was a victory for the principle that the state has no right to impose one moral view that cannot be reconciled with the needs and desires of a variety of citizens. The function of law is to provide limits within which an individual may express his personality without encroaching on the right to such expression of others; it is not to regulate the individual’s behavior as it affects only himself. (“This Nation’s Law and Morals,” 1969, p. 79)
In addition, the Telegram summed up an evolving reality of the times: Secular society had rejected legislation that contained remnants of Judeo-Christian natural law. “Behind the majority decision was the demand for meaning to the oft-touted ideals of freedom and justice, which law, usually lagging behind social standards, does not always reflect” (This Nation’s Law and Morals,” 1969, p. 79) A new perception of reality had emerged when Bill C-150 received Royal Assent on June 27, 1969. As the Toronto Star proclaimed, “It [was] a sign of growing maturity in Canada that the distinction between law and morality [was] now becoming more clearly understood” (“The Law and Moralilty,” 1969, p. 78).
In point of fact, the orthodox view of same-sex acts received very little support from the press. Writing for the Toronto Telegram, Lubor Zink (1969a) summarized the legal dilemma faced by the liberals in his article “Should our laws reflect morality?” (p. 64). At the heart of the matter was an inherent dilemma: Had our perceptions of perversion changed, making the law outmoded, or was the government forcing Canadians to accept a repugnant law? George Bain (1969) of the Globe and Mail was simply ambivalent about changing the Criminal Code: “Do we cease to use the law to define standards of private behavior and to punish those who either can’t or won’t adhere to them?” However, Bain’s conclusion led to more questions than answers. He was unsure “if homosexuality was a disease, if a disease was a sin, or if sin was a crime” (p. 57). Bain never addressed the fact that Trudeau’s reforms to the Criminal Code dealt with non-harmful conduct between adults in private, the crux of the issue.
The Trudeau Legacy
Bill C-150 as Progressive Social Policy
Conservative mastermind Dalton Camp once said of Trudeau: “When you are lucky in politics, even your enemies oblige you” (Donaldson, 1964, p. 240). This tells only half the story, for luck occurs when hard work meets opportunity. That was Trudeau’s gift when it came to sexual politics. He recognized that to seize the moment he needed to be in sync with the growing secularism of the times. Before mapping out his plan for such a mandate, Trudeau told Maclean’s in 1964, “one must have some idea of what kind of society it is intending to govern” (p. 24). The liberals under Trudeau witnessed a society moving increasingly toward secular views on homosexuality, largely influenced by the Kinsey Studies, the Wolfenden Report, and Klippert v. The Queen.
The debate, however, did not completely resolve the dilemma of homophobia since all political parties—including the liberals—still maintained the link between homosexuality and the disease model; however, Bill C-150 did help to erode another layer of heterosexual hegemony. In other words, it began a process of breaking down the barriers that made homosexuals second-class citizens. More than anything, Bill C-150 provided a neutral framework so that homosexuals could lead more productive lives, unburdened by pejorative labels maintained by Judeo-Christian natural law. In this sense, Trudeau became the symbol for democratic rationalism—a bridge between the people and a new act of law. In 1969, Pierre Elliott Trudeau and his government had indeed created a progressive democratic measure with the passage of Bill C-150.