Canada is a free country now

[Spiffor]

Originally posted by Patroklos
Tax it.

[KrazyHorse]

It already is.

[notyoueither]

Originally posted by Flubber
More generally-- Legally I support this decision. The canadian criminal code provisions about bawdy houses are so unclear its silly.

If people want to have sex with other people, why should the law stop them from doing it in a safe and clean environment. I highly doubt this establishment actually bothered anyone . . . and if it did, thats a business licence or a zoning issue, nothing more

What was the basis of their decision?

[RGBVideo]

Asher: That's the biggest doublespeak use of "progressive" I've ever seen.

[Flubber]

Originally posted by notyoueither


What was the basis of their decision?

Well here is the summary of the majority reasons--

Per McLachlin C.J. and Major, Binnie, Deschamps, Fish, Abella and Charron JJ.: In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met. The first is 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 by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct. The categories of harm capable of satisfying the first branch of the inquiry are not closed. The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. This two‑branch test must be applied objectively and on the basis of evidence. [62]

In this case, the accused must be acquitted. The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct in question. On the evidence, only those already disposed to this sort of sexual activity were allowed to participate and watch. There is also no evidence of anti‑social acts or attitudes toward women, or for that matter men. No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that the club is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. The membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. Finally, with respect to the third type of harm, the only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually and causally unrelated to indecency. Since the Crown failed to establish the first requirement to prove indecent criminal conduct, it is unnecessary to proceed to the second branch of the test. If one did, there seems to be no evidence that the level of alleged harm rose to the level of incompatibility with the proper functioning of society.

[Flubber]

I just don't see how having group sex is "indecent" if only done in a place where the only people present are club members. The evidence was that only members were permitted and that members had an interview prior to entry to ensure they were aware of the full nature of the club.


Its not my scene but what two or five consenting adults so among themselves is not my concern and I definitely don't see why it should be criminal

[Flubber]

In fairness, here is trhe case summary of the minority view

Per Bastarache and LeBel JJ. (dissenting): The application of the appropriate test leads to the conclusion that the impugned acts were indecent and that the accused’s establishment was a common bawdy‑house within the meaning of s. 210(1) of the Criminal Code. [76]



The new approach to indecency proposed by the majority is neither desirable nor workable. Not only does it constitute an unwarranted break with the most important principles of our past decisions regarding indecency, but it also replaces the community standard of tolerance with a harm‑based test. Whether or not serious social harm is sustained has never been the determinative test for indecency. Moreover, when the standard of tolerance is established on the basis of the three categories of harm, it becomes impossible to take into account the multitude of situations that could exceed the threshold for indecency. This new harm‑based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected. The existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient. Finally, in the context of an offence under s. 210(1) of the Criminal Code, it is not absolutely necessary to consider the harm done to society. [75] [98‑104] [115]





To determine whether acts are indecent, it is preferable to continue applying the original test for indecency, which focusses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance. Whether or not harm is sustained is merely one of several indicators or contextual factors that make it possible to gauge the degree of tolerance of the Canadian community. Although a certain degree of subjectivity is inherent in the establishment of the standard of tolerance because of the judge’s role as interpreter of the community’s minimum standards regarding sex, the analysis remains objective as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus. [76] [134]



The question that must therefore be asked in the case at bar is as follows: “Do the impugned acts offend the standard of tolerance of the contemporary Canadian community, having regard to their nature and to the place and context in which they occurred?” The following contextual factors may be considered in determining the standard of tolerance: (1) the private or public nature of the place; (2) the type of participants and the composition of the audience; (3) the nature of the warning given regarding the acts; (4) the measures taken to limit access to the place; (5) the commercial nature of the place and the acts; (6) the purpose of the acts; (7) the conduct of the participants; and (8) harm suffered by the participants. Regarding this last factor, attention must be paid to the risk of physical or psychological harm. This approach permits the risk of spreading sexually transmitted diseases to be taken into account. Finally, the consent of the participants or the fact that those present are informed adults is not in itself a determinative factor. A consensual sexual act that is totally acceptable in one situation may be indecent if it is performed in another context. It is the tolerance of the general public that counts, not the tolerance of the participants or spectators. [81] [122] [131‑132]





In the case at bar, the impugned sexual acts were very explicit acts, and the place where the acts were performed was a public establishment. Although advertised as a private club, the accused’s club was a place to which the public had ready access “by invitation, express or implied”, within the meaning of s. 150 of the Criminal Code. All that was necessary was to pay the requested fee after a cursory interview that was quite superficial, or to be the guest of a club member. What is more, the measures taken by the club to control access did not adequately limit the public’s access to a place where very explicit sexual acts were performed. The establishment’s operations are also indicative of the commercial nature of the activities that took place there. Sexual acts could be performed on the third level of the establishment only after a mandatory commercial transaction between the participants and the owner of the establishment, since everyone had to pay a fee to become a member. The participants essentially purchased sexual services provided by other participants. In the instant case, it is even possible to conclude that a form of social harm has been sustained that results from the failure to meet the minimum standards of public morality. Finally, even though the participants were informed adults whose actions were consensual and voluntary and who presumably shared the philosophy of partner swapping, this characteristic of the participants is not relevant under s. 210 of the Criminal Code other than to demonstrate the existence of demeaning or dehumanizing acts. Considered in context, the explicit sexual acts performed in the accused’s establishment clearly offended the Canadian community standard of tolerance. The community does not tolerate the performance of acts of this nature in a place of business to which the public has easy access. The acts were therefore indecent. The public and commercial dimensions of the sexual practices in issue would lead to the conclusion that those practices were indecent even if there were no harm. [137‑141] [145‑148] [151‑153]

[Jon Miller]

Originally posted by Flubber


I believe in the swinger scene, guys are expected to be "straight" but female bisexuality is seen as acceptable. It seems to be a double standard

yeah, see this shows that the swinger scene is exploitive

JM

[Jon Miller]

Originally posted by Flubber
I just don't see how having group sex is "indecent" if only done in a place where the only people present are club members. The evidence was that only members were permitted and that members had an interview prior to entry to ensure they were aware of the full nature of the club.


Its not my scene but what two or five consenting adults so among themselves is not my concern and I definitely don't see why it should be criminal

there is a difference between what is private and what is public

I also don't think this should be legislated in the pivacy of someones home

in a public establishment, however..

JM

[Flubber]

Originally posted by Jon Miller


there is a difference between what is private and what is public

I also don't think this should be legislated in the pivacy of someones home

in a public establishment, however..

JM

Where is the line though? Strip clubs exist all accross Canada-- what is indecent outside those doors is accepted inside them.

The majority said

Defining indecency under the Criminal Code is a notoriously difficult enterprise. The Criminal Code offers no assistance, leaving the task to judges. The test developed by the cases has evolved from one based largely on subjective considerations, to one emphasizing the need for objective criteria, based on harm. This heightened emphasis on objective criteria rests on the principle that crimes should be defined in a way that affords citizens, police and the courts a clear idea of what acts are prohibited. (See Reference re ss. 193 and 195.1 (1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, per Lamer J.) We generally convict and imprison people only where it is established beyond a reasonable doubt that they have violated objectively defined norms. Crimes relating to public indecency are no exception

Subjective tests just don't work since it would make activity legal in a club in downtown Montral and illegal in an identical club in rural Alberta. here we are talking criminal activity here and sorry but I just can't see criminalizing someone providing a place for people to have group sex if thats what floats their boat.

The problem is and always has been that it is very very diffiocult to define indecency.

[notyoueither]

There is also no evidence of anti-social acts or attitudes toward women, or for that matter men. No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others.

Who is in a better position to judge this? An appointed court or the people we elect who have to listen to a lot more arguments than would be presented before the SCoC?

In this case it may be true that 'no one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others', but I'd really like to know how the SCoC could know that.

For myself, I find it hard to believe that there are or were no possible cases of wives or girlfriends being pressured into participating in these activities. The idea that there aren't or weren't is, frankly, preposterous.

I also find it pretty ridiculous to argue that there is no public health issue associated with indiscriminate promiscuity. Condoms break, and I would be surprised if they were used 100% of the time.

The fact that the club is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. The membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests.

They didn't all meet there and go to a private home. Many of them used rooms provided by the clubs. Last I knew, it was the prerogative of the Parliament, and other branches of government to regulate commercial activity in this country.

Zoning indeed. All of Canada is one big zone where Parliament is empowered and expected to set some rules.

Finally, with respect to the third type of harm, the only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually and causally unrelated to indecency. Since the Crown failed to establish the first requirement to prove indecent criminal conduct, it is unnecessary to proceed to the second branch of the test. If one did, there seems to be no evidence that the level of alleged harm rose to the level of incompatibility with the proper functioning of society.

Yeah, right. It sounds to me as if seven of them disagree with Parliament and the people we send to Ottawa to represent us.

If there is no Charter issue, who should be making this decision?

[Jon Miller]

strip clubs in the US have a very strict no sex rule

I can tell you that what goes on when a stripper comes to your home is much different than what can go on in a club

it has to do with deciency standards (which is no sex is public places).. and anything that is/approaches sex is not allowed in clubs (public establishments)

(For example, there is no penetration at strip clubs, in private homes I have seen penetration)

JM

[notyoueither]

Where is the line though? Strip clubs exist all accross Canada-- what is indecent outside those doors is accepted inside them.

Any strip club that put on a live sex show would be shut down and the proprietors charged. Anywhere in Canada.

Now. Allow people to pay for memberships and 'participate'.

[KrazyHorse]

Originally posted by notyoueither
Yeah, right. It sounds to me as if seven of them disagree with Parliament and the people we send to Ottawa to represent us.

If there is no Charter issue, who should be making this decision?

As far as I understand it, NYE, until the SC decides that there is a Charter issue, Parliament is still entitled to enact a law which would ban the operation of a swinger club.

There is no such law at this moment. The SC overturned no law passed by Parliament. The laws in existence bar "indecency". There is no law passed by Parliament defining "indecency". In the past, the standard applied was that of the prevailing norms of the community. The standard the court has now decided should be applied is that of social harm. Since there is no formal legislation on the issue, the question is one of interpretation of the law, which has always been the province of the courts.

If Parliament wants to explicitly define indecency then they are free to do so. Until they do, the courts decide what is indecent and what is not.

[notyoueither]

I thought they were charged with operating a common bawdy house. Both were convicted and fined. One was overturned on appeal, the other upheld. Off to the SCoC they both went.

Then, from what Flubber posted, seven of our justices decided to change the standard of how they will view convictions under the criminal code.

Yer damn right Parliament can pass another law. And they should.