“The preamble to the Charter provides an important element in defining
Canada, but recognition of the supremacy of God, emplaced in the
supreme law of Canada, goes no further than this: it prevents the
Canadian state from becoming officially atheistic. It does not make
Canada a theocracy…” per Muldoon J (Federal Court of Canada)
For the second time in fewer than two years, a regional court has declared that the criminalization of act of buggery between consenting adult males in private is unconstitutional.
In August 2016, in Caleb Orozco v the Attorney General of Belize, the Supreme Court of that jurisdiction ruled that section 53 of the Belize Criminal Code that criminalized “carnal intercourse against the order of nature” with a dissuasive penalty of ten years imprisonment, sought to include within its ambit consensual sexual conduct between adult males in private and thus disproportionately impacted on the lives of gay men thereby violating their constitutionally guaranteed rights to dignity, privacy, equality before the law and non-discrimination on the grounds of sex. Nor could such legislation be deemed justifiable on the basis of a vague public morality. Moreover, it was inconsistent with Belize’s international treaty obligations that served to inform the interpretation of the Constitutional text.
On Thursday last, in Trinidad & Tobago, Mr Justice Rampersad similarly declared that sections 13 and 16 of the Sexual Offences Act 1986 in that jurisdiction were unconstitutional, illegal, null, void, invalid and of no effect to the extent that these laws criminalized any acts constituting consensual sexual conduct between adults. So far as is relevant, these sections read:
13 (1) A person who commits the offence of buggery is liable on conviction to imprisonment for twenty-five years
13(2) In this section “buggery” means sexual intercourse per anum by a male person with a male person or by a male person with a female person.
16 (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.
(2) Subsection (1) does not apply to an act of serious indecency committed in private between—
(a) a husband and his wife;
(b) a male person and a female person each of whom is sixteen years of age or more, both of whom consent to the commission of the act; or
(c) persons to whom section 20(1) and (2) and (3) of the Children Act apply.
(3) An act of “serious indecency” is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.
It might be of interest to note that section 14, which criminalizes bestiality, carries a maximum penalty of fifteen (15) years, perhaps to signal the official revulsion felt at the act of buggery as opposed to that of bestiality. Also to be noted in this connection is that section 16 may criminalize lesbianism as an act of serious indecency.
I have not had the opportunity so far to read the text of his judgment, but it would be interesting to see how Rampersad J managed to avoid the strictures of the savings (existing) law clause, section 6 of the Trinidad & Tobago Republican Constitution, that is similar to our section 26.
However, on a perusal of the Sexual Offences Act, itself enacted in 1986, I note that both sections 13 and 16 were amended in 2000 and again in 2012. In order to satisfy the definition of an existing law therefore and to preserve their immunity from constitutional query, these amendments would have had to satisfy the stipulations in subsections 1(b) and 1(c) of section 6-
6. (1) Nothing in sections 4 and 5 shall invalidate—
1. (a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right.
To the contrary, in Barbados, I do not recall that the relevant law in section 9 of the local Sexual Offences Act, Cap 154, has ever been amended since 1966, in which case it would be clearly an existing law and thus susceptible to constitutional query as being in conflict with the fundamental rights provisions of our supreme law.
While both the Belizean and Trinidadian decisions would be likely to raise eyebrows in Barbados, they are both consonant with the international human rights law on the matter.
In Nicholas Toonen v. Australia the UN Human Rights Committee ruled that a statute of the State of Tasmania prohibiting sexual contact between consenting adult men in private was in violation of the ICPR’s articles including that of non-discrimination on the basis of sex; Article 2. In subsequent rulings and observations the Committee has criticized laws that discriminate against sexual minorities in the United States.
Sexual orientation is also a ground expressly protected from discrimination in Canada and South Africa.
In Toonen, the UNHRC found it “undisputed that adult consensual sexual activity in private is covered by the concept of privacy …” The Tasmanian authorities challenged this on the basis that the laws proscribing homosexual activity were justified on public health and moral grounds, since they were intended in part to prevent the spread of HIV/AIDS in Tasmanian. However the Committee stated that:
“The Government of Australia observes that statutes criminalizing homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus”.
And in Dudgeon v. United Kingdom, the European Court of Human Rights (ECHR) found that Northern Ireland’s anti-sodomy laws constituted an interference with the applicant’s right to private life guaranteed under Article 8 of the European Convention. This was so because it caused “detrimental effects on the life of a person of homosexual orientation like the applicant”. According to the Court:
“A person’s sexual activities involve the most intimate aspect of private life so there must exist serious reasons before interferences on the part of the public authorities can be legitimate for the purpose of Article 8”.
It was claimed in response by Northern Ireland that the law protected public morals and the rights and freedoms of others. However, the ECHR ruled that though the laws did in fact serve these aims, they were unnecessary (not necessary) to achieve these aims in a democratic society and thus not proportionate.
I will return to further discussion of this matter in next week’s Musings.
To be continued…
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