The recent Supreme Court Decision re Jean-Paul Labaye, also known as The Swingers’ Club case, heralds a new direction in Canadian jurisprudence.
The obscenity and indecency sections of the Criminal Code are convoluted and often vague and, until this decision, based on the rather nebulous and highly subjective model of “community standards.” What the model said was -all things considered - would the community, meaning the larger Canadian community not a specific community, tolerate or not tolerate certain situations or standards.
In the case of sexuality issues, especially those involving allegations of obscenity and indecent behaviour, the model tended to be subjective. How can one measure what “Canadians” feel or believe?
For many years, homosexuality – even being homosexual – was illegal and a criminal activity. Think about that for a second or so. For being who we are, and for acting on those feelings, we were rounded up, charged, imprisoned, and labeled as criminals. Not just labeled; in the eyes of the law and our fellow Canadians, we were criminals.
As social and political analyses evolved, Canadians were able to tolerate homosexuality. This didn’t mean the average Canadian approved of it, liked it, or supported it. It only meant that the greater Canadian community allowed for the fact some people were homosexual and, whatever their individual views, were willing to live and let live.
However, tolerance is not acceptance.
Even now, 36 years after homosexuality was decriminalized, we still hear arguments about the morality of homosexuality vs heterosexuality. Homosexuality often comes off as the “less moral” of the two in these arguments.
In the so-called Swingers’ Case, what the Supreme Court of Canada has essentially said is that the morality of one group of people cannot be imposed on another group where there is no demonstrable harm done to the public. This is a huge difference. The Court has stated that the subjective “community standards” model is replaced in law by the more objective “demonstrable harm” model. If society is not harmed by what consenting adults do with each other in private, then that activity is neither criminal nor indecent.
When Goliath’s was raided in December 2002, those of us speaking out against the raid said the same thing. In 1969 when Pierre Elliott Trudeau decriminalized homosexuality he uttered the now famous phrase, “the government has no business in the bedrooms of the nation,” in other words, the state has no business regulating individuals’ sex lives.
The only time the state should become involved is when there has been harm done.
Any prohibition of sexual activity, or any other activity, must be justified only on specific and compelling evidence - not on the moral persuasion of certain individuals or on some vague interpretation of what that moral view might be.
The Swingers’ Club case has huge ramifications for the gay, lesbian, and bisexual communities. For twenty-three years no gay steambath (or bathhouse) in Canada was ever raided. The previous series of raids, circa 1979-1981 in Toronto, created such a backlash from the gay community no jurisdiction dared to raid these establishments. In fact, the reaction to those raids, and the behaviour of the Toronto Police Department, is credited with being the beginning of the Canadian GLBT movement. The raids were Canada’s Stonewall.
Naturally, conservative columnists and pundits are predictably outraged about this latest volley from an ‘activist judiciary.’ Such columnists, one who recently mistakenly opined 14-year olds could access such establishments, have always resisted sexual freedom.
This decision is about freedom. Canadians are free to express themselves as they choose with other consenting adults – or not, as they wish.
The definition of privacy has expanded. While one still cannot engage in sex in the middle of Stephen Avenue at noon (or any other time, for that matter), or on one’s front lawn in front of the neighbours, the idea that privacy means only two people out of view no longer applies. If they choose to bring in a third, fourth, fifth, or fifteenth and all have consented, and nobody is subjected to seeing the activity who has not consented, the court has said this is private as well.
However, the ruling isn’t totally without restrictions. Even though group sex in private is no longer criminal, Section 159 of the Criminal Code, which criminalizes anal sex except between two adults (i.e. over the age of 18) in private, remains on the books. So while group sex, three ways, etc. are now no longer criminal, if a group of gay men, for instance, got together for sex and one man fucked another in the presence of even one other individual, according to Section 159 that is a criminal act.
And, of course, we still have the restriction that while Canadians aged 14 can give sexual consent, they cannot give consent for anal sex until they are 18 years of age. What this means in practical terms is that Josh and Brittany can have sex with each other in regards to oral and vaginal sex, the two main activities in heterosexual sex, but Jason and Brian, if they choose to fuck, are criminals at the age of 14, 15, 16, or 17 years.
Canada’s sex laws are still evolving. The recent Supreme Court decision (http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc080.wpd.html) is a step in the right direction, but it is only a step.
Stephen Lock is a long-time glbtq activist, Vice-President and Regional Co-Director for Egale Canada and also the producer and host of a semi-monthly glbtq radio show, Speak Sebastian, airing at 9pm on the 1st and 3rd Wednesday of the month on CJSW FM 90.9 (www.cjsw.com).
