A New Canadian Defnition of Indecency....?

Read the court case summary here or the SCC judgment here.

----

It was a decision that made waves around the Canadian legal community. Controversy is the common currency of legal debate, but when the Supreme Court makes a controversial decision about group sex, even the quietest critics come out of the woodwork. On December 21, 2005, the Supreme Court ruled; 7-2, that the conduct occurring in the highly publicized swingers Club L’Orage, was not indecent. Within days of this ruling the rumblings began - not all of it was negative. The Montreal Gazette applauded the decision with an article entitled “Supreme Court Swings the Right Way”.[1] Don Mills of the National Post posted his nod of approval with the lines; “… it is not the role of government to enforce life lessons… [t]hat is why we applaud the Supreme Court of Canada for its judgment ...”.[2]

However, there was opposition as well. The Toronto Star pointed to the sharply worded Supreme Court dissent with the headline; “Majority ruling goes too far”[3] and the editor of the Calgary Herald mourned; “[i]n these cases, the Court has failed … [i]t has said what was once considered disgraceful behaviour is literally a harmless activity”.[4] The media frenzy was sparked by the Supreme Court’s marked departure from previous rulings by declaring that Jean-Paul Labaye [owner of Club L’Orage] was not guilty of operating “a common bawdy house”. What could have prompted such a far-reaching change? One answer is that the judicial definition of “indecency” itself was re-written by the Supreme Court through this significant ruling.

The Labaye case claims more than one reason for its controversiality. The decision not only presented a new definition of indecency but also a brand new process to measure what community would consider as “indecent”. Jean-Paul Labaye had been convicted of violating s. 210(1) of the Criminal Code R.S.C. 1985 by the Quebec Court of Appeal in 2004. The offence is defined in s. 197(1) of the Criminal Code as “a place kept, occupied, or resorted to by one or more persons for the purpose of prostitution or to practice acts of indecency”.[5]

Counsel for Labaye argued that no acts of indecency had occurred within the meaning of s. 197(1) of the Criminal Code. Therefore, the sole question before the court was, whether the conduct that went on in Club L’Orage constituted “indecent acts”. When deciding this case, the majority held that that the test for indecency should be the harm based test. The majority retired the previously employed “community standards test” because they found it to be too subjective and favoured the “harm based test” which they saw to be more objective.[6] In applying this test, the court considered that only acts that caused harm of a significant degree should be criminalized by being deemed indecent.[7] The court arrived at this test by equating the old notion of community standard of tolerance with what would cause harm to a degree incompatible to the proper function of society”.[8] This analysis led to the overturning of the Appeal Court decision and the acquittal of Jean-Paul Labaye. The result of the Labaye decision is that the harm based principle is now the leading approach to obscenity and indecency laws[9] and has quickly found its place in Canadian jurisprudence.

It is proposed that the harm based test is too narrow in that it does not encompass the entire scope of issues that must be examined to determine if society will tolerate an action as indecent or obscene. There is little doubt that harm is a key issue to be examined when considering what a community may tolerate as “decent” verses “indecent”. However, equating the community tolerance test to the harm based principle ignores the possibility for an act to be indecent for reasons beyond causing harm. It can be argued that subsequent Supreme Court judgments (R. v. Ellison, 2006 BCPC 549, R v. Latreille, 2007 QCCA 1330) that have taken this harm principle into account, do not entirely reflect the public morals and consequently, an adequate standard of tolerance. This approach will be examined and contrasted to the points raised in the dissent by Bastarche and LeBel JJ. From an analysis of R v. Labaye and the resulting jurisprudence, it is possible to posit that the new harm based approach to evaluate criminal indecency is not a manageable legal standard because it cannot be applied objectively, does not take all aspects of community tolerance into account and is paramount to the courts re-writing legislation by changing the definition of a key word in the Criminal Code.

[1] “Supreme Court Swings the Right Way,” Editorial, Montreal Gazette,  (23 December 2005)
[2] Don Mills, “Freedom to Swing”, The National Post (25 Dec 2005), pg. A22
[3] “Majority ruling goes too far” The Toronto Star (22 December 2005), pg. A16
[4] “The Real Harm is to our values: Unfettering swingers' clubs is hardly family friendly”, The Calgary Herald (22 December 2005), pg. A18
[5] Criminal Code, R.S.C. 1985, s.197 (1)
[6] Alex Fielding, “When Rights Collide”, online: (2008) The Appeal, pp. 28-50 < http://www.culturalrenewal.ca/downloads/sb_culturalrenewal/appeal-vol13-article-WhenRightsCollide.pdf>
[7] Ian R. Smith, "Indecent Acts R. v. Labaye; R. v. Kouri" (2006) 35 The Supreme Court Law Review p.149
[8] R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80, para. 29.
[9] Richard Jochelson, “After Labaye: The Harm Test of Obscenity, The New Judicial Vacuum and the Relevance of Familiar Voices” (2009) 46 Alberta Law Review pg. 745