Supreme Court of Canada says OK to swingers clubs with group sex, swapping
http://www.recorder.ca/cp/National/051221/n122137A.html
(Gold9472: Perverts.)
JOHN WARD
12/21/2005
OTTAWA (CP) - Swingers clubs which feature consenting adults cavorting in twosomes, threesomes and moresomes, are legal, the Supreme Court of Canada said Wednesday.
In a major decision, the court re-wrote the definition of indecency to use harm, rather than community standards, as the key yardstick. The 7-2 majority ruling, written by Chief Justice Beverley McLachlin, said indecent acts must be shown to be harmful to the point where they "interfere with the proper functioning of society."
Public sex would meet the test of indecency, but orgies and partner swapping among like-minded adults in private don't, McLachlin wrote.
A sternly worded dissent from Justices Michel Bastarache and Louis LeBel said the majority decision goes too far.
"It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency," the dissenters wrote.
The ruling dealt with two Montreal cases in which swingers club operators were charged with keeping a bawdy house. James Kouri and Jean-Paul Labaye were both convicted, but in separate Court of Appeal rulings, Labaye's conviction was sustained and Kouri's was overturned.
The high court threw out Labaye's conviction and affirmed the Kouri decision.
Writing on Labaye, McLachlin noted:
"Entry to the club and participation in the activities were voluntary. No one was forced to do anything or watch anything. No one was paid for sex."
Defining indecency has always been difficult, McLachlin wrote.
"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 would function only with a generous measure of tolerance for minority mores and practices."
The courts have gradually moved from subjective considerations to objective standards, focused on the harm caused by the acts.
"The threshold is high," McLachlin wrote. "It proclaims that, as members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society."
Bad taste, violation of religious or moral standards or even public disgust aren't by themselves enough to make something indecent.
Conduct that confronts the public, which predisposes others to anti-social behaviour or actually harms those taking part, would meet the test, McLachlin wrote.
The sex acts cited in the Kouri and Labaye cases didn't come close to being harmful enough to be criminal.
The dissent said the key question should be whether the conduct in question offends "the standard of tolerance of the contemporary Canadian community."
Bastarache and LeBel wrote that harm should not be the main ingredient in determining indecency.
"We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected."
© The Canadian Press, 2005
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Originally Posted by Gold9472
