Decriminalizing Queerness: The Ongoing History of 2SLGBTQIA+ Interactions with the Canadian Criminal Justice System (Part 1: Case Comment on Klippert v The Queen, 1967 CanLII 73 SCC)

by Lizzie Tough

Trigger Warning: This blog series discusses the injustices of criminalized queerness as a sexual offence in Canada. Some language and topics could be triggering for 2SLGBTQIA+ readers. This blog contains discussions on the meaning of “consensual” in the context of sexual offences.

A Brief History of Criminalized Queerness

Sexual diversity has existed since time immemorial, and, in the past, Canada has criminalized this trait. Anti-queer laws were imported to present-day Canada by European settlers in the early colonial days.[1] Until 1869, same-sex relationships were punishable under the adopted English “Bloody Code.” This Victorian code of criminal offences included punishments such as banishment, corporal punishment, public humiliation (via pillories), and life imprisonment.[2] By the time Canada became an independent nation in 1867, it had inherited many of its laws and procedures from Victorian Britain, including criminalizing same-sex relations between men.[3] Similar provisions made an appearance in the Criminal Code of Canada which was enacted in 1892.[4] These laws targeted only gay men until 1953 when it was expanded to include women involved in same-sex relations.[5] In 1960-1961, Canada expanded the terms that would place the “dangerous sex offender” label on gay individuals who were engaging in consensual and age-appropriate same-sex relations.[6] The impacts of these laws on Canadians were significant, often placing gay men in unsafe conditions in penitentiaries.[7] In 1969, the Canadian government recognized that the criminalization of same-sex relationships was inappropriate.[8] The Criminal Code was amended to exclude consensual same-sex relationships from Canadian criminal law, marking the beginning of the process of decriminalizing sexual diversity.[9] However, it is not the only step that Canada has taken, nor has Canadian law established substantive equal rights for 2SLGBTQIA+ throughout the Criminal Justice System.[10]

Decriminalizing Queerness: The Ongoing History of 2SLGBTQIA+ Interactions with the Canadian Criminal Justice System

This blog is the first of a series called “Decriminalizing Queerness: The Ongoing History of 2SLGBTQIA+ Interactions with the Canadian Criminal Justice System.” Decriminalizing Queerness will discuss key events in Canadian criminological history as they relate to the ongoing movement to liberate and celebrate queer identities in Canada. This series will begin with a case comment on Klippert v The Queen, 1967 CanLII 73 (SCC), a controversial decision that sent shockwaves across Canada in queer and ally circles.[11] During this same period, the Civil Rights Movement in the United States was giving power to marginalized groups through solidarity and allyship.[12] This gave activists the platform they needed to advocate for the decriminalization of homosexuality.[13] The second blog of this series will focus on a period between 1970 and 1987; a period where 2SLGBTQIA+ Canadians experienced extreme harassment by police officers and the courts, essentially continuing the criminalization of queer identities.[14] The third installment in this blog series will explore the ongoing criminalization of 2SLGBTQIA+ identities and disproportionately harmful experiences of 2SLGBTQIA+ individuals who are subjected to the Canadian Criminal Justice System.[15] The fourth blog of this series will explore the shift in the Canadian Criminal Justice System during the late-twentieth to early twenty-first century and whether Canadian criminal law adequately responds to and deters hate crimes against 2SLGBTQIA+ individuals and communities.[16] The final blog of this series will explore the complex journey to the criminalization of conversion therapy in Canada, including perceptions of what “consensual” means in the context of the harms caused by attempts at extinguishing queer identities.[17] This series should support the argument that, although Canadian law and society have made tremendous strides towards substantive equality for 2SLGBTQIA+ individuals and communities, there is still work to be done in the Canadian Criminal Justice System.[18] 

Case Comment: Klippert v. The Queen, 1967 CanLII 73 (SCC)

Introduction

This is the first installment of “Decriminalizing Queerness: The Ongoing History of 2SLGBTQIA+ Interactions with the Canadian Criminal Justice System,” and will explore a historic and controversial case decision made by the Supreme Court of Canada (the “SCC”) two years before the decriminalization process began for sexually diverse relationships in Klippert v The Queen, 1967 CanLII 73 (SCC).[19] This appeal brought forth two questions of law regarding the interpretation of the requirements for an offender to be labeled a “dangerous sexual offender,” and whether the alleged “offender,” Everett George Klippert, met the requirements to be labeled as such.[20] Klippert had been convicted of engaging in consensual sexual relations with adult same-sex partners, which came with the label “dangerous sexual offender.”[21] Because Klippert had been labeled as a “dangerous sexual offender,” an indeterminate prison sentence was imposed to prevent harm to the public.[22] Although the evidence suggested that Klippert was only interested in consensual sexual relationships with other adult men that were analogous to consensual heterosexual relationships,[23] the SCC controversially held that the label and coinciding sentence were appropriate.[24] The dissent, however, provides valuable consideration to the interpretation of homosexuality and consensual sex in relation to the Criminal Code.[25] 

Facts

The facts as they pertained to the sequence of events that led to Everett George Klippert’s conviction of “gross indecency” were not disputed by the defence. Everett George Klippert was a sexually active homosexual man who had moved to the Northwest Territories because of the social and legal ramifications of being a gay man in Calgary.[26] While living in Pine Point, NT, Klippert was employed as a mechanic’s helper.[27] Klippert had a previous conviction for being involved in consensual same-sex relations with other men, for which he served penitentiary time. Because “gross indecency” included consensual same-sex relations, Klippert was forced to avoid contacting people in his social circle who were gay out of fear of further penitentiary time and had been shunned by his family because he was gay.[28]

In the summer of 1964, the RCMP harassed and intimidated Klippert, informing him that the RCMP was aware that he was a convicted homosexual man.[29] This caused Klippert to fear for his well-being, and he remained discreet about his sexuality.[30] Klippert took significant measures for his safety and care when approaching adult men in pursuit of consensual sex, including not pursuing men who show no interest in consensual same-sex intercourse.[31]

On August 16, 1965, Klippert was detained under suspicion that he was involved in an arson, of which his name was cleared. However, the Crown instead pursued four charges of “gross indecency” under section 149 of the Criminal Code as it appeared at the time of the charges.[32] It is not described how evidence had been obtained or whether there was any coercion by the RCMP to obtain a guilty plea from Klippert. However, the Crown seemed to know of at least four incidents of Klippert engaging in consensual same-sex relations, and Klippert pled guilty before a Magistrate.[33] He was sentenced to three years in a penitentiary which was appealed because of the danger it posed to Klippert’s personal safety as a gay man.[34] This sentence was overturned and, instead, Klippert was given an indeterminate sentence and labeled a “dangerous sexual offender” under section 661 of the Criminal Code, based on the fact that Klippert is a homosexual man and has no desire to be heterosexual.[35] Two psychiatrists gave expert witness testimony that supported the facts that Klippert was a gay man who engaged in consensual same-sex intercourse and was not a violent or otherwise dangerous threat to the public.[36] It was further substantiated that Klippert had no indication of showing signs of desiring younger men or non-consensual sexual relations.[37]

Simply put, Everett George Klippert was a working-class man, who happened to be gay at a time when homosexuality was still criminalized and had no history of violence or behaviour that would otherwise indicate him as a danger to the public.

Issues

The issues presented to the SCC are two questions of law relating to the interpretation of a “dangerous sex offender,” based on the evidence provided to the courts:

1.     Was there evidence before the trial judge “that Klippert was a person who had shown a failure to control his sexual acts;” and

2.     Was there evidence before the trial judge that “can support the conclusion that the accused ‘has shown a failure to control his sexual impulses and is likely to cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses or is likely to commit a further sexual offence?’”[38] 

The second question of law contains two sub-issues, which were a key focus of the dissent, written by Cartwright J.[39] Firstly, will the accused’s sexual activity “cause[s] injury, pain or other evil to any person, through failure in the future to control his sexual impulses?” The second sub-issue evaluates whether the accused’s sexual activity “cause injury, pain or other evil to any person,” because he is “likely to commit a further sexual offence.”[40] The interpretation by the majority, however, interpreted the sub-issues as i) would Klippert “cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses;”[41] and ii) was Klippert likely to commit a further sexual offence?”[42] This difference in how the second issue was approached is critical to the decision in this case.

Decision & Analysis

The majority of the SCC, including Justices Spence, Fauteux, and Judson, held that there was sufficient evidence to conclude that Klippert had shown a a to control his “sexual impulses,” and that Klippert was likely to commit a further sexual offence.[43] Thus, the SCC justified that a “dangerous sexual offender” includes men who are consensually involved sexually with another man, who is likely to continue having consensual same-sex relations, and who have the same level of “sexual impulses” as a heterosexual man has for a woman.[44] Further, the SCC held that an indeterminate sentence to protect the public was justifiable, even though there was no evidence of Klippert posing a threat to the public.[45]

The language interpretation of section 661 of the Criminal Code by the SCC suggests that the SCC was not yet receptive to consensual same-sex partners. Instead, the SCC preserved in law that the interpretation of the term “dangerous sexual offender” includes two consenting same-sex adults engaging in sexual relations.[46] This is a fallacy that, even during the era of this case, should have been acknowledged.[47] Instead, the SCC took a constructivist approach to the interpretation of s. 661, at the time of Klippert’s charges and subsequent conviction.[48] That is, instead of considering what it meant to be a “dangerous sexual offender,” one who poses a high risk of further victimizing others by committing a sexual offence against a victim, the SCC chose to find a way to affirm a broad and discriminatory interpretation of section 661 of the Criminal Code.[49] 

The dissent, written by Cartwright J. and agreed with by Hall J., argued that a lack of consent in past sexual interactions and a pattern of harm caused by an inability to control sexual impulses were a significant portion to the criteria as to whether a convicted sex offender was “dangerous.”[50] Cartwright J. dissented that Klippert posed no threat to the public because he was very careful to confirm consent and there was no indication that he was violent, nor did Klippert show any indication that he had any sexual interest in youth.[51] The dissent placed significant value on evidence from two psychiatric experts who found no reason to believe that Klippert was a danger to the public.[52] In particular, the second psychiatrist, Dr. Ian McLaren McDonald, also emphasized that Klippert’s sexual desires, which were based on consensual adult same-sex relations, were analogous to the consensual sexual desires of a heterosexual person who would otherwise not be considered to have broken the law when they engage in intercourse.[53] It is important that the dissent made this discernment because it exemplifies the shift in judicial acceptance of the fact that a person’s queerness does not in itself incite harm to society.

Conclusion

The decision, in this case, was contentious with the public and led to further advocacy in favour of decriminalizing consensual same-sex relationships in Canada because these relationships did not cause harm nor a threat to the public.[54] Although same-sex relationships were decriminalized, Klippert’s indeterminate prison sentence remained in place, as was the label “dangerous sexual offender” imposed on Klippert because he was a homosexual man who was sexually active and engaged in consensual sexual activity.[55] Klippert was not released until 1971, a year after the change in section 149 of the Criminal Code, which decriminalized consensual same-sex relations for adults over the age of 21, entered into force.[56] Despite this change, the injustice against Klippert within the Canadian Criminal Justice System is a stain in Canada’s criminal law history.

The Klippert decision exemplifies several important biases that have persisted throughout queer history in Canada. Firstly, there is implicit bias that homosexuality is analogous to immorality, or an “evil,” as opposed to being analogous to heterosexuality.[57] This is apparent in the way the police handled Klippert’s case;[58] how the Crown’s prosecution proceeded by advocating for an indeterminate sentence for Klippert;[59] how the courts interpreted the legal definition of the label “dangerous sexual offender” and applied section 661(b) of the Criminal Code;[60] and how the impugned provision itself was written by politicians when amended in 1960-1961.[61] These continued biases will be featured in the next installment of this blog series, which will look at the increased aggression and targeting of queer individuals by police officers and the continued use of “gross indecency” charges to suppress queerness after the decriminalizing process began for consensual same-sex relations in Canada in 1969.[62]

[1] Cash, Amanda, The Criminalization of 2SLGBTQIA+ Canadians, (Halifax: Coverdale Justice Society, 2023) at 10, online (pdf): <coverdale.ca> [https://perma.cc/XVS6-HPQB] [Criminalization of 2SLGBTQIA+ Canadians].

[2] Ibid. See also Levy, Ron, “The 1969 Amendment and the (De)criminalization of Homosexuality” in The Canadian Encyclopedia (Historica Canada, 26 November 2019) online: <thecanadianencyclopedia.ca> [https://perma.cc/2PC6-ZGQG] [(De)criminalization of Homosexuality]; Richard Jochelson, and James Gacek, ed, Sexual Regulation and the Law: A Canadian Perspective, (Bradford, ON: Demeter Press, 2019) [Sexual Regulation and the Law]. See generally Philip Girard, Jim Phillips & R. Blake Brown, A History of Law in Canada: Beginnings to 1866, vol 1 (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2018) at 280 [History of Law in Canada to 1866].

[3] Criminalization of 2SLGBTQIA+ Canadians, supra note 1; (De)criminalization of Homosexuality, supra note 2; Sexual Regulation and the Law, supra note 2. See also History of Law in Canada to 1866, supra note 2 at 379.

[4] The Criminal Code, 1892 55-56 Vict, c 29, ss 174, 178.

[5] Criminal Code, RSC 1953-54, c 51, ss 147-149, as it appeared on June, 1954 [Criminal Code, 1953-54]. See also Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 13; (De)criminalization of Homosexuality, supra note 2.

[6] Criminal Code, 1953-54, supra note 5, as amended by SC 1960-61 c 43, ss 32-4.

[7] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 4.

[8] Criminal Code, 1953-54, supra note 5, as amended by SC 1968-69, c 38, ss 7, 76-8. See also Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 4.

[9] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 4. See also (De)criminalization of Homosexuality, supra note 2.

[10] Ibid.

[11] Ibid.

[12] Stephen Vider, The Queerness of Home: Gender, Sexuality, and the Politics of Domesticity after World War II, Chapter One: “Something of a Merit Badge”: Lesbian and Gay Marriage and Romantic Adjustment (Chicago: The University of Chicago Press, 2021) at 30 [The Queerness of Home]. See also The Queerness of Home, supra note 12 at 75.

[13] Ibid.

[14] Ibid; see also (De)criminalization of Homosexuality, supra note 2.

[15] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 21; Dr. James Gacek, “Rainbow Captives: The Conditions of and Challenges for Queer Incarceration” (Distinguished Visitors Lecture Series delivered at Room 204 of Robson Hall, 28 September 2023) [unpublished]. See also Sexual Regulation and the Law, supra note 2.

[16] Canadian Bar Association, “Reintroduce Hate Crime Legislation” (27 June 2023), online: <cba.org> [https://perma.cc/CE7D-YBHN].

[17] Criminal Code of Canada, RSC 1985, c C-46, as amended by SC 2021 c 24. See also Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 4, 17.

[18] Criminalization of 2SLGBTQIA+ Canadians, supra note 1.

[19] Klippert v The Queen, 1967 CanLII 73 (SCC) [Klippert].

[20] Ibid at 822.

[21] Ibid.

[22] Ibid at 825.

[23] Ibid at 827.

[24] Ibid at 836.

[25] Ibid at 823.

[26] Ibid at 828.

[27] Ibid at 825.

[28] Ibid at 828.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid at 825. See also Criminal Code, 1953-54, supra note 5 as it appeared in August 1965.

[33] Klippert, supra note 19 at 826.

[34] Ibid at 832.

[35] Ibid.

[36] Ibid at 827.

[37] Ibid.

[38] Ibid at 825, 832.

[39] Klippert, supra note 19 at 831.

[40] Ibid.

[41] Ibid at 833.

[42] Ibid.

[43] Ibid at 822.

[44] Ibid at 827.

[45] Ibid at 836.

[46] Ibid.

[47] The Queerness of Home, supra note 12.

[48] Klippert, supra note 19 at 836.

[49] Ibid.

[50] Ibid at 829.

[51] Ibid at 828.

[52] Ibid at 829.

[53] Ibid at 831.

[54] Criminalization of 2SLGBTQIA+ Canadians, supra note 1. See also The Queerness of Home, supra note 12.

[55] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 15. See also (De)criminalization of Homosexuality, supra note 2.

[56] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 15. See also (De)criminalization of Homosexuality, supra note 2.

[57] Klippert, supra note 19 at 836.

[58] Ibid at 825, 828.

[59] Ibid at 826.

[60] Ibid at 835.

[61] Criminal Code, 1953-54, supra note 5, ss 149, 659, 661(b), as amended by SC 1960-61 c 43.

[62] Criminalization of 2SLGBTQIA+ Canadians, supra note 1 at 15. See also (De)criminalization of Homosexuality, supra note 2.