The Supreme Court Of Canada has swept away the idea that community standards should define indecent behaviour in Canada, legalizing consensual public and group sex in members-only sex clubs.
The court, quashing bawdy-house charges laid against the proprietors of two Montreal straight swingers clubs, ruled that harm is the only test of whether sexual acts are indecent or not. Group sex by club members, so long as it is not seen by those who chose not to see it, is not indecent. The Dec 21 judgment used the past tense to describe the community standards test of indecency that courts have traditionally used. These community standards have often been used against sexual minorities like gay and lesbian people.
“How does one determine what the ‘community’ would tolerate were it aware of the conduct or material?” wrote Chief Justice Beverley McLachlin for the majority. “In a diverse, pluralistic society whose members hold divergent views, who is the ‘community’? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct at issue? In practice, once again, the test tended to function as a proxy for the personal views of expert witnesses, judges and jurors. In the end, the question often came down to what they, as individual members of the community, would tolerate.”
Instead, the court said harm should be the only criteria for determining what is indecent and it laid out suggestions for a test of harm. Firstly, whether the conduct “causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws.” Secondly, whether the harm or risk of harm “is of a degree that is incompatible with the proper functioning of society.” The court concluded that partner-swapping and group sex in a commercial venue do not meet this standard of harm.
“This is a huge step,” says bathhouse owner Peter Bochove, who has been leading a campaign to get Canada’s sex laws changed. “Obviously this puts an end to bathhouse raids. After 32 years of business, it’s here – son of a bitch.”
In their lengthy dissenting opinion, justices Michel Bastarache and Louis Lebel point how radical a change this is from past rulings.
“The new approach to indecency proposed by the majority is neither desirable nor workable,” wrote Basterache and Lebel. “Not only does it constitute an unwarranted break with the most important principles of our past decisions regarding indecency, but it also replaces the community standard of tolerance with a harm-based test…. This new harm-based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected. The existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient.”
The ruling dealt with two Quebec Court Of Appeal decisions: one that ruled in favour of Montreal swingers club Coeur à Corps club and one that ruled against Montreal swingers club L’Orage club. Proprietors were charged with keeping a common bawdy house – defined as a place where prostitution or indecent acts take place – because there was group sex and sex in the open taking place on the premises.
The facts of the case stated that these were members-only clubs, where everyone was aware of the nature of the activities of the club.
“No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others,” wrote the majority. “The fact that l’Orage is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. Members do not pay a fee and check consent at the door; the membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. The case proceeded on the uncontested premise that all participation was on a voluntary and equal basis.”
Though gay bathhouses were not under discussion in the case, they seem to meet all the criteria laid out by the Supreme Court for being legal enterprises. Bathhouses in Hamilton and Calgary have been raided in the last couple of years; a porn theatre in Toronto was raided in 1999.
Prostitution, also a part of Canada’s bawdy-house laws, was not addressed in the ruling.
“There’s work left to be done,” says Bochove.