Anal intercourse law Canada has a complex and controversial history, particularly under former Section 159 of the Criminal Code (UCR Code 1375). Historically, this provision made anal intercourse a criminal offence except in very narrow circumstances, treating it as a hybrid offence (prosecutable either by indictment or by summary conviction). Over time, Canadian courts and lawmakers came to view this law as discriminatory and inconsistent with modern principles of equality, privacy, and consensual adult sexual activity. While the text of Section 159 long remained in the Criminal Code archives, many courts across Canada declared it unconstitutional, significantly limiting its enforceability.
The Legal Definition
159 (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(2) Subsection (1) does not apply to any act engaged in, in private, between [husband and wife or persons 18 years or older].
In plain English, the historic version of Section 159 said that any person who engaged in anal intercourse committed a criminal offence, unless they fell within a narrow exception. That exception applied only if the activity was:
- between a husband and wife (i.e., a married opposite-sex couple under the traditional reading); or
- between two persons who were both at least 18 years old, and
- the act took place “in private”.
This meant that consensual anal intercourse between adults could still be criminal if, for example, the couple was not married and one partner was under 18 (even if over the general age of consent for sexual activity), or if the activity did not meet the strict legal concept of “in private.” The law also effectively singled out a specific sexual act for special criminal treatment, even when all parties consented and no exploitation or assault was involved.
Courts and commentators increasingly criticized this structure as inconsistent with other parts of the Criminal Code that regulate sexual activity based on age of consent, absence of consent, or exploitation, rather than on the specific type of consensual activity. Many courts held that Section 159 violated the equality rights and privacy protections in the Canadian Charter of Rights and Freedoms, especially in relation to same-sex couples and younger adults who were otherwise of legal age to consent.
Penalties & Sentencing Framework
- Offence type: Hybrid offence (Crown can proceed by indictment or summary conviction).
- Maximum penalty (indictable): Up to 10 years imprisonment.
- Maximum penalty (summary conviction): Up to 2 years less a day in jail and/or a fine of up to $5,000.
- Mandatory minimum penalty: None (sentencing is entirely discretionary within the statutory maximums).
As a hybrid offence, anal intercourse under Section 159 gave prosecutors discretion in how seriously to treat a given case. Proceeding by indictment exposed the accused to a much higher maximum sentence (10 years) and the more formal procedures of a superior court. Proceeding by summary conviction meant a lower maximum penalty and streamlined procedures in provincial court, but still carried the stigma of a criminal record.
Within these limits, judges had a broad range of sentencing options because there was no mandatory minimum. Sentences could range from an absolute or conditional discharge, to fines, probation, or periods of incarceration, depending on the facts. However, in practice, as courts increasingly declared Section 159 unconstitutional and refused to apply it, prosecutions became rare. Where the conduct actually involved non-consensual activity, exploitation, or coercion, police and Crown typically laid sexual assault or related charges (under Sections 271–273 of the Criminal Code) rather than relying on Section 159.
A key nuance in sentencing and enforcement was the law’s focus on consensual conduct. By criminalizing a specific consensual sexual act, Section 159 diverged from the general structure of Canadian sex offences, which focus on the absence of consent, abuse of authority, or vulnerability of the complainant. Courts viewed this as overbroad and discriminatory, especially where same‑sex male couples or unmarried partners were concerned. This growing Charter jurisprudence significantly undercut the practical operation of the section before legislative repeal efforts were formally undertaken.
Common Defenses
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Statutory exception under Section 159(2) (lawful excuse)
The first and most direct defense arose from the wording of Section 159(2) itself. If the accused could show that the anal intercourse took place “in private, between husband and wife or persons 18 years or older”, the conduct fell squarely within the statutory exception and no offence was committed. In practice, this meant carefully examining: (1) whether both participants were at least 18, or were married to each other under the traditional interpretation; and (2) whether the activity satisfied the legal notion of “in private” (typically meaning no more than two persons present, and no observation by others). If these conditions were met, defense counsel would argue that Section 159(1) simply did not apply, and the charge should be dismissed as a matter of law. -
Charter Section 15 – Equality rights challenge
Over time, one of the most powerful and successful defenses was to challenge Section 159 under Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality before and under the law without discrimination. Courts noted that Section 159: (a) singled out anal intercourse for special criminal treatment, disproportionately impacting gay and bisexual men; (b) imposed a higher effective age threshold (18) than the general age of consent for other sexual activities; and (c) created distinctions based on marital status and sexual orientation (for example, offering an explicit exception for “husband and wife”). Several courts held that this scheme was discriminatory and not justified in a free and democratic society. Where a court accepted such a Charter argument, it could declare Section 159 of no force and effect in that jurisdiction, leading to stays of proceedings or acquittals for people charged under it. -
Consent and privacy – conduct not properly captured by Section 159
Another important line of defense focused on the role of consent and privacy in Canadian sexual offences law. If the activity was non‑consensual, coercive, or exploitative, the appropriate charges should be under the general sexual assault provisions (Sections 271–273) or related offences, not Section 159. Defense counsel could therefore argue that where the Crown’s own theory rested on absence of consent, Section 159 was the wrong charge and an abuse of process. On the other hand, where the act was fully consensual and private between adults, counsel would argue that criminalizing it served no legitimate objective, reinforcing Charter arguments about privacy and equality. In either scenario, highlighting how Canadian law treats consensual adult sexual activity—especially in private—helped demonstrate that Section 159 was out of step with the broader legal framework.
Real-World Example
Consider two unmarried adults, ages 19 and 20, who are in a consensual relationship. They engage in anal intercourse in one partner’s apartment with the doors locked and no one else present. Under the historical interpretation of Section 159, this situation raised several issues. Although both individuals are clearly adults and have freely consented, the activity is anal intercourse and they are not married
In the modern legal climate, however, courts would scrutinize any such charge with reference to Charter rights. Defense counsel could argue that applying Section 159 in these circumstances discriminates based on sexual orientation and marital status, and unjustifiably intrudes into the couple’s private, consensual sexual life. Many courts have accepted precisely this reasoning, declaring the section unconstitutional and refusing to enforce it. In practice, this means that today, a scenario like this is understood in line with general Canadian principles: consensual sexual activity between adults in private is not a crime, and the law’s primary focus should be on preventing exploitation, coercion, and non‑consensual conduct. Because anal intercourse under Section 159 was historically classified as a hybrid offence, record suspension (pardon) eligibility follows the general rules for hybrid sexual offences, subject to important caveats about the nature of the conduct and evolving repeal legislation. Where a conviction proceeded by summary conviction, an individual would typically become eligible to apply for a record suspension after a 5‑year waiting period from the completion of all sentences (including jail, probation, and fines), assuming the offence is not one that is permanently ineligible for a suspension under current Parole Board of Canada rules. Where the Crown proceeded by indictment, the ordinary waiting period is 10 years after sentence completion. However, the law in this area is complex and has evolved in light of the widespread recognition that Section 159 was discriminatory and out of step with Charter values. In some cases, individuals with convictions under this section may seek post‑conviction relief, such as record suspensions or other extraordinary remedies, by relying on the fact that multiple courts have found the provision unconstitutional or that Parliament has moved to repeal it. Anyone affected by an historical Section 159 conviction should obtain up‑to‑date legal advice on whether they are eligible not just for a standard record suspension, but also for any special review or expungement processes that may apply to offences now widely recognized as discriminatory.Record Suspensions (Pardons)
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