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Ontario judge upholds public nudity law

Ruling won't affect TNTmen or Pride

Toronto's TNTmen shouldn't have to worry that this ruling will negatively affect their activities. Credit: David Hawe
An Ontario court ruling that upholds the constitutionality of Canada’s public nudity laws has resulted in the conviction of one man but should not affect previous rulings that protect the rights of Canadian nudists to hold private events or to be nude in public places where nudity is expected.
 
Brian Coldin, a naturist, was convicted on four counts of public nudity related to incidents when he was nude near his property, when he attempted to order at a Tim Hortons drive-through by walking up to the window nude, and when he was nude in the passenger seat when a friend used the drive-through at an A&W.
 
Coldin’s lawyer had argued that Coldin was not nude because he was wearing sandals – a defence that Totally Naked Toronto Men Enjoying Nudity (TNTmen) had previously argued successfully before the courts. Coldin’s lawyer also argued that the laws against public nudity were unconstitutional on grounds of freedom of expression and security of the person.
 
In a 37-page ruling (attached below), Justice Jon-Jo A Douglas finds that although the legal definition of the word nude means to be wearing no clothes at all, one can still be in violation of the law if the person’s state of dress or undress is such as to offend against public decency or order. So Coldin was found guilty despite his sandals.
 
On the constitutional matters, the Crown had argued that nudity itself wasn’t expressive or imbued with meaning and therefore couldn’t be protected under free expression, but Justice Douglas didn’t buy that reasoning.
 
“The case must be assessed on a subtler basis,” Douglas writes. “Is the type of nude and fully public conduct engaged in by the defendant in these many instances so imbued with meaning as to be protected expression? [emphasis in text]”
 
While Douglas did find that being nude could be protected by freedom of expression, he rejected Coldin’s claim that he was expressing his beliefs as a naturist in the cases for which he was charged.
 
The decision disappointed Stéphane Deschênes, a spokesperson for the Federation of Canadian Naturists.
 
“It’s sad for Mr Coldin because he really believes in what he was fighting for,” Deschênes says. “Unfortunately, what he was trying to do was a little too far and too much. I think he was right, but I think as naturists we recognize that most of society has issues with their bodies. It’s wrong and odd, but I think we have to convince them, not force them, to accept it. I think it would be a better world if we were all more comfortable with ourselves and each other.”
 

TIMELINE OF TNTMEN’S FIGHT
FOR LEGAL NUDITY

1996: Naked dance parties are held periodically at The Barn nightclub by nudist group Toronto Canada Area Nudists (TCAN).

1997: Bert Bik and four others splinter from TCAN to form Totally Naked Toronto Men Enjoying Nudity Inc (TNTmen), a not-for-profit social men’s club.

1997: TNTmen’s Monthly Naked Dance launches at The Barn nightclub. The first party attracts 39 attendees. Within three months, the number swells to 100.

1998: Toronto police harass The Barn for hosting TNTmen dances. A party is busted for liquor violations for allowing disorderly conduct. But there are no such problems, just a group of naked men. TNTmen lawyer and member Peter Simm meets with Barn owner Janko Naglic, Naglic’s lawyer and Toronto police superintendent Aidan Maher. They agree that TNTmen will sell tickets off-premise at Pegasus and Spa Excess, to create the atmosphere of a private club. The Barn is charged again, even after Maher is presented with a legal brief showing why the charges will not hold up in court.

1998-2000: While awaiting the outcome, TNTmen goes underground, hosting hotel parties, house parties and bowling.

May 12, 1999: Toronto city council votes to restore the official clothing-optional designation at Hanlan’s Point Beach, largely due to Simm’s work. The story is picked up by Reuters, making international headlines. The TNTmen membership base grows from 150 to 350 people almost overnight.

June 2000: The Crown dismisses all charges against The Barn, setting the precedent that decriminalizes naked events in bars. After a brief party on the steps of the courthouse, Naked Dance is organized at The Barn in time for Pride 2000. Approximately 440 people attend.

Pride 2000: In what seems to be retaliation by police, seven men are arrested for marching nude in the Toronto Pride parade. The Crown dismisses all charges, saying that they were not nude (they were wearing shoes) and that the men were in an environment in which people expect to see nudity.

2000-Oct 2004: TNTmen Naked Dances run monthly at The Barn without incident, even after Naglic’s brutal murder. The Barn closes for renovations in January 2005; TNTmen moves to Slack Alice.

2005-2009: TNTmen events move from Slack Alice back to The Barn, then to George’s Play, then Alibi, then Gladaman’s Den.

June 2009: TNTmen moves to its new permanent home, Goodhandy’s.

However, Douglas’s ruling does seem to protect public nudity in places where it is already expected. For example, nothing in the ruling seems to affect previous decisions that allowed the establishment of the nude beach at Hanlan’s Point.
 
In fact, the ruling seems to go to lengths to protect the right of naturists to be nude in their private establishments, even those open to the public. This would include privately owned nudist parks or events in private establishments, such as a naked night at a bar or club.
 
Douglas also compares Coldin’s behaviour with “nudity at a rally or demonstration in favour of such” to establish what would be meaningful and protected expression. This seems to establish further the legality of nude marchers at Pride.
 
Burt Bik, a spokesperson for TNTmen, says that Coldin’s behaviour was ill-considered.
 
“He chose to be naked in an area where he’s not supposed to be,” says Bik. “The law is very clear. You must not walk around in a way that is an offence to others.
 
“Because Pride is in an environment where people expect to see nudity, that’s okay.”