Wednesday, December 21, 2005
Sex clubs legal, top court rules
The Supreme Court rewrote the definition of indecency today and in the process legalized swingers clubs complete with orgies, partner swapping and voyeurs.
Consenting adults cavorting behind closed doors in twosomes, threesomes and moresomes while like-minded people look on are not committing indecent acts, the court said in a major ruling which cast some clarity into a murky area of the law.
In its 7-2 decision, the court redefined indecency to use harm, rather than community standards, as the key yardstick.
Sex club operators welcomed the news.
“It cements the position of the government by staying out of the bedrooms of Canadians,” said Shlomo Ben Zion, owner of the Wicked Club in downtown Toronto.
Montreal club owner Denis Chesnel said the ruling shows the court’s evolution.
The judges recognize that “people can exercise their fundamental rights to have sexual relations with partners of their choice,” he said.
Others disagreed strongly.
“I think it is beyond what most Canadians would find tolerable,” said Janet Epp Buckingham, director of law and public policy for the Evangelical Fellowship of Canada. “This kind of thing offends Canadian standards of decency.”
She said the decision is likely to lead to changes in the way strip clubs operate and legitimize gay bathhouses.
The ruling, written by Chief Justice Beverley McLachlin, said acts must be shown to be harmful to the point where they “interfere with the proper functioning of society” before they can be labelled indecent.
“Grounding criminal indecency in harm represents an important advance in this difficult area of law.”
Public sex would meet the test of indecency, but orgies and partner swapping among adults in private don’t, McLachlin wrote.
In a sharply worded dissent, Justices Michel Bastarache and Louis LeBel said the majority decision goes too far.
“It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency,” the dissenters wrote.
Joel Bakan, a University of British Columbia law professor, said the court is taking a very liberal approach to the issue.
“It’s saying that if an activity is actually causing harm . . . then it should be and can be stopped,” he said.
“If it’s simply a question of moral taste, a question of sort of subjective views of what people like to do with their life, basically people are free to do what they want as long as they’re not causing harm to others.”
The ruling dealt with two Montreal cases in which swingers club operators were charged with keeping a bawdy house under similar circumstances.
James Kouri and Jean-Paul Labaye were both convicted, but the unsettled state of the law was demonstrated clearly when separate Court of Appeal rulings upheld Labaye’s conviction and overturned Kouri’s.
The high court threw out Labaye’s conviction and affirmed the Kouri decision.
Writing on Labaye, McLachlin noted:
“Entry to the club and participation in the activities were voluntary. No one was forced to do anything or watch anything. No one was paid for sex.”
Defining indecency has always been difficult, and judges have wrestled over the issue for a century and more, McLachlin wrote.
“Over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context and that a diverse society would function only with a generous measure of tolerance for minority mores and practices.”
The courts have gradually moved from subjective considerations to objective standards, focused on the harm caused by the acts.
“The threshold is high,” McLachlin wrote. “It proclaims that, as members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society.”
Bad taste, violation of religious or moral standards or even public disgust aren’t by themselves enough to make something indecent.
Conduct that confronts the public, which predisposes others to anti-social behaviour or actually harms those taking part, would meet the test, McLachlin wrote.
The sex acts cited in the Kouri and Labaye cases didn’t come close to being harmful enough to be criminal.
The dissent said the key question should be whether the conduct in question offends “the standard of tolerance of the contemporary Canadian community.”
Bastarache and LeBel wrote that harm should not be the main ingredient in determining indecency.
“We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected.”
Ben Zion, who claims a 13,000-strong membership list for his club, says it is Ontario’s only on-premises swingers operation. Another four or five Ontario clubs move their get-togethers among hotels and private homes, he said.
He estimated there might be 20 to 30 swingers clubs in Canada.
Ben Zion said he’s glad that the law has been clarified.
“It was always a kind of grey area,” he said. “Even the police didn’t know how to react to this kind of environment, although we never had any problems.”
He said he plans to expand and hopes to entice more Americans north to frolic.
“People from the states, with all the restrictions that they have now, will have more reason to come here.”