Cyber Swing/Polyamory Resource Center
Promoting Intimacy and Other-Centered Sexuality
Supreme Court of Canada Rules Canadians can have group sex in clubs
Dec 21, 2005
OTTAWA (Reuters) - Group sex among consenting adults is neither prostitution nor a threat to society, the Supreme Court of Canada ruled on Wednesday as it lifted a ban on so-called "swingers" clubs. (Dave notes while prostitution is legal in Canada, its not in a place regularly used for prostitution or indecent acts due to rarely enforced 1850's Bawdy House law)
In a ruling that radically changes the way courts determine what poses a threat to the population, the top court threw out the conviction of a Montreal man who ran a club where members could have group sex in a private room behind locked doors. "Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," said the opinion of the seven-to-two majority, written by Chief Justice Beverley McLachlin.
The court was reviewing an appeal by Jean-Paul Labaye, who ran the L'Orage (Thunderstorm) club. He had been convicted in 1999 of running a "bawdy house" -- defined as a place where prostitution or acts of public indecency took place. Labaye -- who is still running L'Orage despite his earlier conviction -- said he was relieved, and would now go ahead with a new venture with backing from a group of Florida investors. "We hope clients will be more calm. This will probably lead the way to a good future," he told reporters, saying he was looking at adding a Jacuzzi and a swimming pool. Labaye said he had about 2,000 regular clients who paid around C$20 (US$17) a year for a membership card.
Lawyers for Labaye and the owner of another swingers' club in Montreal argued that consensual sex among groups of adults behind closed doors was neither indecent or a risk to society. The Supreme Court judges agreed. "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 offense. (Its) case must therefore fail," McLachlin wrote.
In indecency cases, Canadian courts have traditionally probed whether the acts in question "breached the rules of conduct necessary for the proper functioning of society". The Supreme Court ruled that from now on, judges should pay more attention to whether society would be actively harmed. This seemed to ensure there could be no repeat of Labaye's original conviction for causing "social harm" by allowing degrading and dehumanizing group sex to take place. The judges said that just because most Canadians might disapprove of swingers' clubs, this did not necessarily mean the establishments were socially dangerous. "The causal link between images of sexuality and anti-social behavior cannot be assumed. Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear," the judges said, noting that no one had been pressured to have sex or had paid for sex in the cases the court considered. "The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual activity in question ... only those already disposed to this sort of sexual activity were allowed to participate and watch," they said.
They also dismissed the idea -- raised during Labaye's original trial -- that group sex was dangerous because it could result in the spread of sexually transmitted diseases. "Sex that is not indecent can transmit disease while indecent sex might not," they ruled.
Dave notes: The Canadians take their Charter of Human Rights & Freedoms, far more seriously on individual rights, than we take our similar Bill of Rights. And they are not controlled by far right religious extremists
Editorial from Winnipeg Free Press
Editorial - 'Swingers' legal
Fri Dec 23 2005
THERE was almost an inevitability to the Supreme Court's ruling on Wednesday that sex clubs -- "swingers" clubs as they are known -- are legal and constitutionally protected as long as they do no harm to those who freely choose to participate in the activities that take place within their confines. These activities include such things as group sex and partner-swapping and other, even less conventional indulgences.
It is a redefinition of the kind of sexual behaviour that will now be legally tolerated in this country and a logical extension of former prime minister Pierre Trudeau's diktat that the state has no business in the bedrooms of the nation, however large those bedrooms may be, whatever consenting adults may choose to do in them.
The court ruled that the conventional understanding of the nature of public decency no longer applies in Canada. The new rule is basically to do no harm. "Moral views...do not suffice," Chief Justice Beverley McLachlin wrote. "We must be prepared to tolerate conduct of which we disapprove."
The court, however, was split. Not as split at 7-2 as the Canadian public may be, but strongly split nonetheless. The dissenting judges wrote: "This new harm-based approach strips of all relevance the social values that the Canadian community as a whole believes should be protected."
Some Canadians will object to the ruling, arguing the corruption of morality they see in legally sanctioned sexual promiscuity will harm the social fabric. But the court suggests it does not pose such a threat. It is simply a different lifestyle and a different moral choice and, in a country where moral standards and cultural values are legion, there should be no imposition of one upon the other.
Some may want to look at how they can regulate the new reality the Supreme Court has recognized in Canada.
For many Canadians this may be repugnant, but it is not unreasonable. The court's ruling does not mean everyone must play Kiss the Bottle at the high-risk, intense level that the swingers play at in their clubs. It just means those who choose to play it that way can do so without fear of prosecution.
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