Canada’s Klippert Pardon: An Historic “Offence” Is Remedied

February 28, 2016 in General

The Trudeau administration has announced that it intends to review the cases of hundreds of gay men who were convicted of sexual offences prior to the legalization of homosexual acts in 1969.
Specifically, it will examine “cases of individuals who were convicted of ‘gross indecency’ and ‘buggery’ in past years, in order to determine if a pardon is warranted.”

Commendably, Canadian Prime Minister Justin Trudeau also “intends to recommend that a pardon under the authority of the Royal Prerogative of Mercy be granted posthumously” to Everett George Klippert, the only Canadian to be declared a “dangerous sexual offender” simply because he was gay. Trudeau decided to recommend the pardon and order the review after Toronto’s Globe and Mail raised Mr. Klippert’s case with the government this week, as part of its investigation into circumstances surrounding Mr. Klippert’s conviction. “Everett Klippert’s case was instrumental in the government’s decision to decriminalize homosexual acts between consenting adults,” Cameron Ahmad, press secretary to the Prime Minister, said in a statement.

Everett George Klippert was born in 1926. He was convicted of 18 counts of “gross indecency” by a Calgary (Alberta) court in 1960, and spent four years in prison after pleading guilty to having consensual sex short of anal intercourse with other men. (Anal intercourse, or “buggery,” was a separate offence.) After a second conviction in 1965 in Hay River, NWT, on four additional counts of “gross indecency”, and an additional sentence of a further three years, the Crown attorney in Yellowknife applied to have him designated a “dangerous sexual offender.”

Two psychiatrists examined Klippert and said that he was not a pedophile or in any way inclined to violence. Indeed, they found him “intelligent,” “courteous” and “sensitive” – but concluded that he was likely to once again seek out sex with men upon his release. For that reason, Justice John Sissons went ahead and designated Mr. Klippert a dangerous sexual offender, subject to life imprisonment.

The Supreme Court of Canada upheld the designation (3-2) in 1967, causing a furor in Parliament and the press. Later in 1967, then-Liberal Justice Minister Pierre Trudeau introduced legislation that, among other provisions, decriminalized consensual homosexual acts between two adult men.

“There’s no place for the state in the bedrooms of the nation,” he told reporters, echoing a Globe and Mail editorial of the week before.

A similar bill became law in 1969, when Pierre Trudeau was Canadian Prime Minister. But for reasons that remain unclear, Mr. Klippert was not released on parole until 1971, having spent a total of 10 years in prison.

His son’s administration’s statement this week said: “As Canadians, we know that protecting and promoting fundamental human rights must be an imperative for governments and individuals alike – and this includes gender identity, gender expression, and sexual orientation. We have made great strides in securing legal rights for the LGBTQ2 [lesbian, gay, bisexual, transgender, transsexual, queer, and two-spirited] community in Canada … but the fight to end discrimination is not over and a lot of hard work remains. Canadians know our country is made stronger because of our diversity, not in spite of it.”

After his release from prison, Mr. Klippert moved to Edmonton, where he found work as a truck driver. He died in 1996, at the age of 69. Legislative prohibitions against sexual acts between men were accompanied by very stiff penalties, predate the period of Canadian Confederation. (The laws did not appear to contemplate the possibility of sex between women.) In the 1950s, governments in developed countries confronted two conflicting forces. One was the fear that homosexuals either were inclined to support communism or susceptible to blackmail by communists, and increasing pressure by younger liberal voters to decriminalise male homosexuality.

While England and Wales decriminalized homosexual acts in 1967, in Canada the Diefenbaker administration decided to toughen existing laws instead. In 1961, it changed the definition of a dangerous sexual offender to include anyone who was likely to re-offend after committing a sexual offence. Mr. Klippert was the first and only person to be held in preventive detention – in effect, a life sentence – because a judge found he was likely to continue to seek out other adult men for consensual gay sex after he was released.

Although the Canadian Supreme Court upheld the designation as noted above , Canadian Chief Justice John Cartwright wrote a stinging dissent, saying “it means that every man in Canada who indulges in sexual misconduct … with another consenting adult male and who appears likely, if at liberty, to continue such misconduct should be sentenced to preventive detention,” which “would bring about serious overcrowding” in the nation’s prisons. In another significant development, Klippert was defended by William Wuttenee, the first (Cree) indigenous Canadian lawyer. Klippert’s story was also the subject of a recent Calgary gay community play: “69: Legislating Love and the Everett Klippert Story.”

“There are people that we are finding now who have restrictions on travel because they have a criminal record, or some who want to volunteer for organizations who have been prevented from doing so,” NDP MP Randall Garrison said. “They are quite elderly, but nonetheless, this places restrictions on their lives.” The NDP has advocated in the past for pardons for such men through a private-member’s bill. However, it may be practically impossible to conduct individual reviews of the files of the hundreds, or more likely thousands – no one really knows – of cases of Canadian gay men who were convicted of “gross indecency” or “buggery.”

While police databases could provide the names of those still living, the records of those who have died would be in local courthouses or provincial archives. Many might have been thrown out; others would be incomplete. The obvious alternative would be a blanket pardon, although that might inadvertently include someone who used violence or who had sex with a minor.

However “my feeling from my investigations would be that the vast majority of these convictions were for consensual activities,” said Gary Kinsman, a professor emeritus at Laurentian University who specializes in lesbian, gay, bisexual and transgender issues, “and that a blanket pardon – aside from clear instances were coercion or violence was involved – should be undertaken.”

Mr. Elliott believes the most effective solution would be to issue a blanket pardon, provided the act for which the man was convicted would not have been criminal had it had been committed with a woman. (The past laws thankfully do not appear to have contemplated the possibility of same-sex acts involving women.) Since the apology and pardon given to Alan Turing – who cracked the Enigma code during the Second World War, and whose conviction for gross indecency led to his suicide in 1954 – a campaign is under way in Great Britain to pardon an estimated 49,000 men who were convicted of gross indecency. The Conservative government has taken no action. Professor Kinsman and Mr. Elliott maintain that other past and present injustices against the LGBT community still need to be addressed, such as the discrimination up until relatively recently against homosexuals in the public service and military, and the different ages of consent for vaginal and anal intercourse.

Recommended:

John Ibbotson: “Trudeau to urge pardon for man deemed a dangerous sexual offender for being gay in the 1960s” Globe and Mail: 27.02.2016: http://www.theglobeandmail.com/news/politics/ottawa-to-consider-pardon-for-gay-men-convicted-under-pre-1969laws/article28927302/

John Ibbotson: “Liberals gay-pardon decision applauded but obstacles still exist” Globe and Mail: 29.02.2016: http://www.theglobeandmail.com/news/politics/liberals-gay-pardon-decision-applauded-but-obstacles-still-exist/article28944769/

Klippert versus The Queen (1967): https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4738/index.do

Michael: “How the persecution of a popular Calgary bus driver fifty years ago drove Canada’s decriminalisation of homosexuality” Toronto Sun: 05.09.2016: http://www.calgarysun.com/2015/09/06/how-the-persecution-of-a-popular-calgary-bus-driver-half-a-century-ago-prompted-canadas-decriminalization-of-homosexuality

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