[51]In R v M (C)[1] the Ontario Court of Appeal held that section 159 infringes section 15(1) of the Charter. Abella JA based her finding on the ground of sexual orientation and Goodman and Catzman JJA on grounds of age. The learned Justices all agreed that the infringement was not justifiable under section 1 of the Charter. Abella JA, in her judgment dealing with the infringement of section 15(1) concluded that the distinction in age found in section 159 imposes a burden based on sexual orientation and arbitrarily disadvantages gay men by:
“denying to them until they are 18 a choice available at the age of 14 to those who are not gay, namely, their choice of sexual expression with a consenting partner to whom they are not married.”
She held that it has an adverse impact on them and arbitrarily and stereotypically perpetuates rather than narrows the gap for a historically disadvantaged group.[2]
[52]The above survey shows that in 1967 a process of change commenced in Western democracies in legal attitudes towards sexual orientation. This process has culminated, in many jurisdictions, in the decriminalisation of sodomy in private between consenting adults. By 1996 sodomy in private between consenting adults had been decriminalised in the United Kingdom and Ireland, throughout most of Western Europe, Australia (with the
