What does an indecent act look like?

It should be easy to find out what the law is in a democracy, especially one with Internet access. But when it comes to laws about non-aggressive use of the body – things like indecency and nudity – Canada has a welter of confusing laws, all of them inconsistently enforced. Having armed myself with a pile of scholarly articles, court decisions and access to experts, I still don’t have the full picture.

Let’s begin with nudity. You might think nudity is objective. We know when we’re naked, don’t we? But being nude, for criminal law purposes, is not being naked, it is “being so clad as to offend against public decency or order.”

This wording prevents, for example, a stripper from wearing a transparent outfit to avoid prosecution. But the wording also removes “nudity” from our everyday understanding of the word, placing it into the ethereal region of judicial interpretation.

So when seven gay men at Toronto Pride 2002 were charged with “public nudity” under section 174 of the Criminal Code, the legal outcome wasn’t based on the simple question, “Were they naked?” Their penises might have been exposed, but did they offend public decency and order?

The Crown decided not to proceed with the case against them, knowing (unlike the provincial Attorney General who gave the go-ahead for the charges and the police who laid them) that courts have ruled that most non-sexual and non-harassing nudity – streaking, for example – is legal in Canada.

It should set off some alarm bells that the Attorney General was involved in the Pride nudity charges. Why? Because the public nudity section of the Criminal Code Of Canada is one of the very few sections for which permission of the Attorney General is necessary in order to lay charges. (Hate propaganda is another.) Nudity is considered a political crime – and there are politics in its origins.

A study by University Of Victoria law professor John McLaren describes how the Canadian state used the nudity law to persecute and imprison the Doukhobors, a Russian pacifist and anarchist religious sect, from the 1920s to the 1950s. During this time, penalties for nudity were increased to three years from six months, and then-justice minister Hugh Guthrie admitted this was the “Doukhobor clause” during a parliamentary debate where one Quebec MP opined that “the Ku Klux Klan should lend their nightshirts to the Doukhobors.”

There was no allegation against the Doukhobors of sexual impropriety, the original concern of the law. But their explicitly political nudity became the excuse for a decades-long campaign that included having their children taken away and, for the adults, long and harsh sentences of imprisonment. The long sentences imposed for what is legally a very minor matter were justified so as to allow the state time to resocialize Doukhobor children.

The Attorney General’s clause could easily have been taken out when the Criminal Code was overhauled in 1985. But it was not; public nudity continues to be a political crime. Cops can enforce other laws without asking permission, but only governments can target nudity, since it’s supposedly a threat to the state.

Nudity charges are in any case very rare; police prefer to charge with indecency.

While nudity is found in one specific section of the code, indecency is found in several. One is in the obscenity section, where “indecent shows” are specifically targeted. This is not the same as “indecent exhibitions,” a category linked to “causing a disturbance.”

In another part of the Code, under the bawdy house laws, the habitual performance of indecent acts is listed (along with prostitution) as one of the definitions of a bawdy house. This indecent acts clause is what has been used for a long time to justify raids on gay bathhouses. Since money is not usually exchanged for sex among gay men in bathhouses as it is in heterosexual houses of prostitution, indecent acts provided the legal excuse for raids and bawdy-house charges.

Whether or not money was exchanged for sex can be objectively determined. But how can a police officer or a bathhouse operator know if indecent acts are being committed? What does an indecent act look like?
Being aware of this sticky problem, courts have tried to modernize Canadian law. In its 1992 Butler decision, the Supreme Court Of Canada created a “risk of harm” test to determine what is obscene. That “risk of harm” is also supposed to govern interpretations of indecency.

One important case concerned Guelph university feminist student Gwen Jacob, who set out to challenge what she (mistakenly) thought was a gender-biased law by walking down the street topless. Children playing outside ran inside to get their mothers; men sitting on porches drank beer and ogled; and a number of cops, beginning with an ordinary constable and ending with several cruisers led by a sergeant, descended upon her.

She was charged with indecent exhibition, probably because the local cops did not want to ask the Attorney General for permission to lay nudity charges.
Jacob was initially convicted, but in 1996 the Ontario Court Of Appeal ruled that her “indecent exhibition” did not pose any risk of harm, and was thus not properly the subject of criminal charges.

The Jacob case was an important precedent, especially considering that children were present. It makes it difficult to argue in court that Pride Day nudity is criminal, since the many thousands of spectators hardly show any signs of being harmed, or even shocked.

But Jacob’s victory did not put an end to Canada’s long history of moralistic prosecutions of harmless displays of the body. In fact, a year after the Jacob case, the Supreme Court ruled, in the Mara case, that the relevant risk of harm is not possible or actual harm to performers, or to women as a group. Rather, it’s an entity unknown to psychology called “attitudinal harm.” Like the old morality test it was supposed to replace, the new attitudinal harm test allows judges to decide if they think there is harm going on somehow, regardless of what the people involved claim.

And so today, hookers who look like they might have sex with a client in a parking lot can be charged with committing an indecent act, even if nobody is actually harmed. And men who have sex in public bathrooms, even inside a stall, can continue to be targeted.
In January 2002, lawyers representing several heterosexual sex club argued to the Ontario Court Of Appeal that the indecency part of our bawdy-house law is a void; it’s too vague. The court conceded that the law does not define indecency. But it uneasily ruled that both prostitution and indecency “are defined by the community standard of tolerance…. They are not easy terms to apply, but neither are they impermissibly vague.”
So the Ontario Court Of Appeal, instead of going back to its own decision in Jacob and interpreting “risk of harm” narrowly, recycled the old vague “community tolerance” standard.

This is bad news for sex trade workers – and for all queers. The Supreme Court has made it clear that a cultural minority is not a community for the purposes of determining “community tolerance.” Just because gay men tolerate a sexual act doesn’t mean it meets the test. For criminal law purposes, only a generic Canadian community – moral fibre intact since the Criminal Code of 1892 – has a voice.

And, worse for queers, the voice isn’t heard directly. Public opinion polls might show the Canadian public to be more progressive than what politicians think, but they don’t count. Judges are still the sole authorities on what constitutes harm to the country’s moral fibre – their own notions define what the community will tolerate.
It would be an improvement if courts embraced the Jacob’s risk of harm test, which would protect political nudity and beach nudity. But this will not necessarily make sexual nudity or sex work more legal. In those situations, Canadian courts’ traditional contempt for sexual entertainment and commercial sex will carry the day.

So the space carved out by Jacob and used by the Pride Day nudists is small. The demonstrators are safe from prosecution because they are not acting sexually and they are not getting money. Sex work and other behaviour the courts deem indecent will continue to make criminals of many people, particularly working-class women who do sex work.

We cannot rest content with legal victories that extend only to the already respectable, while allowing the state to prosecute harmless but nevertheless sexual nudity. In many of these cases, the courts can not and will not come to the rescue. It will take political action to change what’s there in the Criminal Code itself.