In a recent decision, the Supreme Court of Canada has reversed an appeals court ruling which had upheld the conviction of Jean-Paul Labaye for "keeping a common bawdy-house for the practice of acts of indecency" under Sec. 210(1) of the Canadian Criminal Code.
The "bawdy house" in question was a lavish Montreal swing club, l'Orage, of which Labaye was the proprietor. The club, which employed a doorman to keep out non-members, consisted of three floors. The first was a bar; the second a salon, where members could socialize, clothed or not, but sexual activity was limited to a single "apartment" on the third floor, which required a numerical passcode to enter.
While the ruling does not detail how the club came to be busted in the first place, other than noting that police had observed, on several occasions, group sex involving one woman and several men, while other members looked on and jacked off.
"Entry to the club and participation in the activities were voluntary," wrote Chief Justice Beverley McLachlin for the majority. "No one was forced to do anything or watch anything. No one was paid for sex. While men considerably outnumbered women on the occasions when the police visited, there is no suggestion that any of the women were there involuntarily or that they did not willingly engage in the acts of group sex."
The trial court had found that even though l'Orage was members-only, the club nonetheless fell within the definition of "public place" for purposes of testing the "indecency" of the activities therein, and that under the 1997 ruling in R. [for "Regina," or "The Queen"] v. Mara, that the sexual encounters at issue caused "social harm" because they took place in front of the other club members.
"In her [the judge's] view, this conduct was indecent under the Criminal Code because it was degrading and dehumanizing, was calculated to induce anti-social behaviour in its disregard for moral values, and raised the risk of sexually transmitted diseases," wrote Justice McLachlin.
A majority of the Quebec Court of Appeals later agreed with that assessment, but Justice McLachlin felt that, "The only question in this case is whether what went on at l’Orage constituted 'acts of indecency'."
"Indecency has two meanings, one moral and one legal," Justice McLachlin wrote. "Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community. But 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 could function only with a generous measure of tolerance for minority mores and practices. This led to a legal norm of objectively ascertainable harm instead of subjective disapproval."
Justice McLachlin then recited some of the history of both the indecency and obscenity laws in Canadian jurisprudence, noting the difficulty in formulating an objective test, and strongly implying that the U.S. Supreme Court's decision in Miller v. California would fail the objectivity test in Canada.
"Borrowing on decisions from Australia and New Zealand emphasizing the foundation of criminal legislation on obscenity and indecency in societal norms, the Court adopted a test based on the community standard of tolerance," Justice McLachlin recounted. "On its face, the test was objective, requiring the trier of fact to determine what the community would tolerate. Yet once again, in practice it proved difficult to apply in an objective fashion. How does one determine what the 'community' would tolerate were it aware of the conduct or material? 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."
It's an assessment and a conclusion, clearly correct, that few judges in the United States would dare to make.
What the Canadian courts finally settled on was a two-part definition of "community standards of tolerance," as contained in the 1985 decision in Towne Cinema Theatres Ltd. v. The Queen, which Justice McLachlin noted "marked the first clear articulation of the relationship between obscenity and harm in Canadian jurisprudence, and represented the beginning of a shift from a community standards test to a harm-based test," which found its final form in the seminal case of R. v. Butler.
"The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure," the Butler court determined. "Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance."
From that perspective, Justice McLachlin then delved into the question of whether the activities that took place at l'Orage constituted "harm" to either the participants or to society as a whole.
"Two general requirements emerge from this [Butler's] description of the harm required for criminal indecency," Justice McLachlin analyzed. "First, the words 'formally recognize' suggest that the harm must be grounded in norms which our society has recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning, but must be incompatible with it." [Emphasis in original]
"The requirement of formal societal recognition makes the test objective," she continued. "The inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its fundamental laws, has recognized as essential... Unlike the community standard of tolerance test, the requirement of formal recognition inspires confidence that the values upheld by judges and jurors are truly those of Canadian society. Autonomy, liberty, equality and human dignity are among these values."
At this point, Justice McLachlin took a step that few judges in the U.S. would dare to take in the current political climate.
"The claim that particular sexual conduct violates particular religious rules or values does not alone suffice to establish this element [societal recognition of harm] of the test," Justice McLachlin wrote. "The question is what values Canadian society has formally recognized. Canadian society through its Constitution and similar fundamental laws does not formally recognize particular religious views, but rather the freedom to hold particular religious views. This freedom does not endorse any particular religious view, but the right to hold a variety of diverse views." [Emphasis in original]
Ostensibly, the U.S. Constitution's First Amendment performs that same function, though in practice, the U.S. judiciary often seems to have confused the right to religious freedom with a necessity to uphold certain religious dogma.
"Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency," stated Justice McLachlin. "(1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct. Each of these types of harm is grounded in values recognized by our Constitution and similar fundamental laws."
Points 1 and 2 most closely correspond to the American concept of "clear and present danger," while the third apparently refers to physical harm that may flow directly from the sexual acts at issue.
Justice McLachlin then dealt with each of the points individually, taking care to note that the "indecent" acts all took place before a willing audience who knew what they would be seeing, and in fact paid to see it. She particularly noted that, "The risk of disease, while it may be connected to other legal consequences, is not logically related to the question of whether conduct is indecent, either conceptually or causally. Indecency connotes sexual mores rather than health concerns, and sex that is not indecent can transmit disease while indecent sex might not."
"Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements," Justice McLachlin concluded. "1. That, by its nature, the conduct at issue 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 ... and 2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society." [Emphasis in original]
After an exhaustive examination of the sexual acts charged in the complaint and the venue in which they took place, Justice McLachlin ruled that, "the evidence provides no basis for concluding that the sexual conduct at issue harmed individuals or society. Butler is clear that criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society. The Crown failed to establish this essential element of the offence. The Crown’s case must therefore fail."
One can only hope that someday, courts in this country will perform the same in-depth examination of the effect of private sexual practices on American society. The process was begun in the U.S. Supreme Court's ruling in Lawrence v. Texas, but the American judicial system still has a long way to go to reach the excellent analysis of the issues presented in R. v. Labaye.
[Many thanks to attorney Roger Wilcox for calling this case to our attention.]
