Canada is a free country now

[Flubber]

Originally posted by notyoueither


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?

Well since our elected officials have not passed any laws specific to this acticity at all, and I believe the indecency language has existed for years and years . . . I guess the courts get to inerpret what it means

Originally posted by notyoueither

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.

Apparently this was the finding of the original trial judge that convicted the proprietors. I do not believe this finding was disputed by anyone .

Originally posted by notyoueither


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.

True but this would be true if the same activity took place in a private home OR if a single woman chooses to have sequential unprotected sex with a number of people one at a time. neither are illegal (unless you know you have HIV)

Originally posted by notyoueither



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.

But this was "regulated" as criminal activity which is one of the few ways the feds can get at a "club" type business since publuic health matters and licencing are provincial matters.

If the feds want to criminalize this activity explicitly, they can. They can provide an non-exclusive definition of "public indecency" so it absolutely includes swingers clubs. The courts would then have to respect that subject to a Charter challenge. Parliament can have the final say here . If they want to get specific I think the message from the court is they better get specific since the vagueness that is "public indecency" is not sufficient to go convicting people

Originally posted by notyoueither


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

Criminal rules yes-- other rules not so much. All the court was doing was defining how the term "public indecency" would be interpreted. The legislature is free to redefine it but have not

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.

I challenge you to find the last time that section 210(1) of the CC was amended. I doubt it was recently since the language is old and the earliest cases cited were from 1868.

Originally posted by notyoueither




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

The parliament can make specific language if they wish but in the meantime this decision is based on sound reasoning. "Public indecency" is far too vague a term to be the foundation of criminal charges.


This case seemed pretty clear cut to me. The interesting situation would be if Parliament does legislate and the court were to consider a Charter challenge to the new legislation. Lets assume that the new laws would infringe a person's rights in some fashion. The section one argument would get to the crux of the matter.

[Flubber]

Originally posted by KrazyHorse


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.

Accurate KH

BUt what the majority discuss in their decisions is the struggle that the courts have always had in defining indecency. On community standards you might have one place scandalized by a dance show that showed ankles while elsewhere lap dances are the norm. Its too subjective. We have federal criminal law and an activity that is criminal in one town should not be completely legal in the next.

[notyoueither]

Two of our justices disagree with you, as do I.

If Parliament thought we needed a more precise definition of indecency, they would have changed the law. I'm under the impression that our parliaments were happy with how things have been going, or they would have changed things.

My biggest problem is not with legal swing clubs, although I can see reasons why they may not be a good idea, my biggest problem is with activist courts going too far.

[Flubber]

Originally posted by 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.

Some view it as a change but the courts have struggles with this provision for ages. I'd bet that probably a good half the population would consider what goes on inside a typical strip club to be indecent-- Where's the line??

Originally posted by notyoueither

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

Maybe they will but I won't lose any sleep either way. If this is permitted I say "so what"? If Parliament passes a new law that survives challenge, I wouldn't worry too much about that either.

[notyoueither]

Hmm. Maybe I shouldn't be as concerned as I might be.

When I first read about this, it struck me as Parliament said x, and the SCoC said, 'no, we think y'.

If it is true that this has been a problem for courts for a long time, then you may be right that the SCoC did the right thing by lobbing it into the laps of our politicians.

I'll suspend judgement for the moment.

[Flubber]

Originally posted by notyoueither

My biggest problem is not with legal swing clubs, although I can see reasons why they may not be a good idea, my biggest problem is with activist courts going too far.

I likewise don't love activist courts but here the SCC was presented with conflicting CA decisions on the indecency term. As well, I'm betting the initial conviction or acquittal on these things probably depend on the subjective views of the trial judge.

Way back in law school when we studied this provision our prof highlighted it as one with a lot of problems due to uncertainty as to what it means. I followed the applicable caselaw from time to time and knew that eventually something would get before the SCC.

Like I said , I won't lose any sleep if a new law is passed but you need something more specific. I just wonder would a Liberal government even attempt this . .. The Conservative view should be obvious but where is the NDP on this one??

[notyoueither]

The discomfort of the Liberals is exactly why I thought it would be a good issue for Harper to raise during the campaign.

Tolerance is one thing, permitting commercial exploitation, and promotion of a risky and exploitative behaviour might play considerably differently with the centre.

[Flubber]

Originally posted by notyoueither
Hmm. Maybe I shouldn't be as concerned as I might be.

When I first read about this, it struck me as Parliament said x, and the SCoC said, 'no, we think y'.

If it is true that this has been a problem for courts for a long time, then you may be right that the SCoC did the right thing by lobbing it into the laps of our politicians.

I'll suspend judgement for the moment.

BUt who knows if the politicians will want to pick it up. The Libs may not want to take a stance and while the conservatives views should be obvious I think Harper is trying to de-emphasize anything where he comes out on the right


And you are correct that the courts did not contradict parliament. There is language that has been in the code for a hundred years and which has been subject to a number of interpretations, some that were followed for quite a while, but probably none that were entirely satisfactory. Thats unsuprising since wearing a skirt above the knee was probably a criminal offence in 1868. Oh ya and wives were the property of their husband.

Times change. Interpretation of the related laws evolve. Is the current indecency test perfect?? No. Is it better than the last one?? Most likely. It does seem a little more certain.

[Flubber]

Originally posted by notyoueither
The discomfort of the Liberals is exactly why I thought it would be a good issue for Harper to raise during the campaign.

Tolerance is one thing, permitting commercial exploitation, and promotion of a risky and exploitative behaviour might play considerably differently with the centre.

You may be right-- But 10 years ago I would never have thought that opposing gay marriage would lose you votes.

So opposing swingers clubs?? It would likely put the Liberals in a bind thats for sure. The bloc might shrug and say who cares?

OH and i get the risky bit but I don't see where this behavior was necessarily exploitive. Isn't possible that some women actually enjoy multiple partners at once???

[notyoueither]

Certainly is possible that some wives like the activity. Definitely probable that some are pressured into it as well.

[Flubber]

On the test I leave you with this from the majority

14 Indecency has two meanings, one moral and one legal. 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.

and

20 In 1985, the Supreme Court pursued the search for objectivity by introducing a two-part definition of community standards of tolerance in Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494. The first way to establish obscenity (undue exploitation of sex) was to show that the material violated the norm of tolerance of what Canadians would permit others, whose views they did not share, to do or see (p. 508). The second was to show that the material would have a harmful effect on others in society (p. 505). Although this notion of harm had been implicit in Cockburn C.J.’s definition of obscenity in Hicklin, Towne Cinema 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.

and

24 Grounding criminal indecency in harm represents an important advance in this difficult area of the law. Harm or significant risk of harm is easier to prove than a community standard. Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of the law into step with the vast majority of criminal offences, which are based on the need to protect society from harm.



25 However, it is not always clear precisely how the harm test for indecency applies in particular circumstances. New cases have raised questions as to the nature and degree of harm sufficient to establish indecency. Further definition is required in order to resolve cases like this, and to permit individuals to conduct themselves within the law and the police and courts to enforce the criminal sanction in an objective, fair way.

The full decision is here

http://www.lexum.umontreal.ca/csc-scc/cgi-bin/disp.pl/en/rec/html/2005scc080.wpd.html?query=%22labaye%22&langue=en&selection=&database=en/rec&method=all&retour=/csc-scc/cgi-bin/srch.pl?language=en~~method=all~~database=en%2Frec~~query=labaye

I have to give it a fuller read to see if I agree with the test they impose but it does appear to do away with a lot of the old uncertainty

[Asher]

Originally posted by 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.

Oh get over yourself.

The public should not interfere with what consenting adults want to do with eachother in a place of a private business or private home.

Stop pushing your morals on other people.

[Asher]

Originally posted by notyoueither
The discomfort of the Liberals is exactly why I thought it would be a good issue for Harper to raise during the campaign.

Tolerance is one thing, permitting commercial exploitation, and promotion of a risky and exploitative behaviour might play considerably differently with the centre.

^^^^

This is why the conservatives can't win in Canada today, archaic social attitudes such as this which is out of step with most of Canada.

They get this idea that what they campaign for is Moral, Just, and Right and they can't lose!

The stupidest thing the conservatives can do right now is take a conservative stand on this social issue. Put your personal morals behind.

You get off playing Civilization, other people get off by swinging. Let them do their thing, don't be such a high-and-mighty "I know better than you" prude.

[Richelieu]

Since he knows that the PC can't win or lose any votes in Quebec with this issue he's hoping Harper is going to use it to get at least the socially conservatives in Ontario.

[notyoueither]

Originally posted by Asher


Oh get over yourself.

The public should not interfere with what consenting adults want to do with eachother in a place of a private business or private home.

Stop pushing your morals on other people.

Like smoking?

Try being consistent, junior.