Media ambivalent about Supreme Court ruling.

Most Canadians were not even aware of the court cases of two Montreal sex club owners before being blindsided once again by the Supreme Court. This time it was a unilateral legalization of common bawdy houses issued on December 21, 2005. In the process of approving the appeal of two owners of Montreal swingers' sex clubs against the conviction or a lower court of being "bawdy houses" for the purpose of committing indecent acts, the judges tossed out the yardstick of community standards of decency.

'As members of a diverse society," wrote Chief Justice Beverley McLachlin, "we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be shown beyond a reasonable doubt to interfere with the proper functioning of society."

She added that courts have moved from "subjective considerations" to "objective standards" of decency. "Bad taste, violation of religious or moral standards, and even public disgust aren't by themselves enough to make something indecent," she wrote.

Media

Most Canadians, in my opinion, would be revolted by this decision. But to add insult to injury, the reaction of the media was tentative and ambivalent in condemnation, when they weren't in favour of the decision.

Readers of the relatively moderate National Post may very well have done a double take at its editorial endorsing the judges' decision. Arguing that in the cases before the Supreme Court "no one was coerced, bribed, or tricked into swinging," there was no victim and therefore "no reason to outlaw such activity," the editorial applauded the ruling. It added that "it hardly threatens our social fabric" (Dec. 22, 2005).

Globe and Mail

For the opposite reason, readers of the ultra-secular Globe and Mail may also have been taken aback by its editorial on the ruling. The pro-abortion, pro-sodo matrimony newspaper rejected the ruling unequivocally ("Just like that, there go community standards," Dec. 22, 2005).

The editorial pointed out that the decision "sets an impossible standard for dealing with sex clubs: proof of harm verging on social disorder." It went on to point out that the court neither defined harm, nor explained how it would be measured.

Furthermore, said the Globe, the ruling is inconsistent with two earlier decisions: the 1992 R. v. Butler pornography ruling which stated: "The courts must determine what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure;" and the 2001 child pornography case. In that ruling, the Court said that scientific proof that pornography causes harm to children was unnecessary. "Rather a reasoned apprehension of harm will suffice." With the ruling on common bawdy houses the Court has thrown out its own considered judgment for yet another innovation.

The Globe reassured its readers one needn't be a "fuddy-duddy" to cringe at the Supreme Court's libertarianism and called for parliament to take the issue back from the courts.

Alas, this brief interlude of moral clarity was too good to be true. In a subsequent editorial only two weeks later ("Of norms and morals," Jan. 3, 2006) the Globe softened its earlier hard line by admonishing its readers that those with "minority tastes or views" should not be turned into "outcasts."

Characterizing divorce, childlessness, and the breakdown of the extended family as the "downside of freedom," the editorial shifted gears from condemnation to rhetorical conundrums such as: "Are there any social and moral norms in today's world?" and: "What can liberal societies do about the downside of freedom?" It wound up by finding the Supreme Court's "groundbreaking decision" to be a good starting point "for real debate."

Aside from the obvious fact that these two editorials were written by two different people with opposing views, one may also note that most Canadians believe debate should precede the making of laws.

Winnipeg Free Press 

The online December 23, 2005 edition of the Winnipeg Free Press pointed out, accurately enough, "There was almost an inevitability to the Supreme Court's ruling ...". Notwithstanding that it was a "logical extension of former prime minister Pierre Trudeau's diktat that the state has no business in the bedrooms of the nation, ... many Canadians will object to the ruling" on the grounds that "legally sanctioned sexual promiscuity will harm the social fabric. But," the editorial soothes, "the court suggests it does not pose such a threat." The Court has simply acknowledged a "different lifestyle" and brought its practitioners in from the cold, and "in a country where moral standards and cultural values are legion, there should be no imposition of one upon the other," concludes this facile editorial.

The Calgary Herald detected a split message coming from "the establishment:" "Parliament pays lip service to family values [observe its affirmation of the 'right' of gays to wed] while the Supreme Court says anything goes" (Dec. 22, 2005).

"No good can come of this," predicts this lame and cliched editorial, "but if history is any guide, a house divided against itself cannot stand" (Dec. 22, 2005). The sorry point is that Parliament with the Liberal government's sodo-matrimony ruling of July 2005 and the Supreme Court with its December 21 ruling are on the same wavelength.

Other voices

There were some voices of sanity in the wake of this decision. Columnist Barbara Kay of the National Post weighed in, a week after the decision, with a far more thoughtful response than her editors. She provided the learned judges and her readers with a practical definition of the term "decency:" Not so long ago the term indecency was easily identifiable by everyone: If an activity that you normally thought about or did only in private caused not just embarrassment, but also shame, when done in public, it was indecent."

She went on to say, "Once deviancy is dumbed down far enough, ... shame-based distinctions aren't honoured as evidence of a moral compass, but are simply labeled 'prejudice,' ..." Pessimistically, but probably accurately, she warned her readers to "expect far worse indecency with seven of nine Supremes decreeing ... non-judgmentalism toward sexual degradation as the preferred Canadian value" (Nat. Post, Dec. 28, 2005).

Edmonton Sun columnist Link Byfield equated Chief Justice Beverly McLachlin with King John, the English tyrant who said, " The law is in my mouth," before he was eventually forced at spear-point to sign the Magna Carta.

Even the Toronto Star, which could easily have been expected to support such a ruling, acknowledged the "shifting foundation of the existing rules," in the wake of the Court's decision ("Decency versus harm," Dec. 23, 2005). Rather than clarifying the legal issues, it said the decision opens the difficult questions of defining and measuring harm, and predicted that the decision's impact on women would be negative and degrading.

REAL Women of Canada vice-president Gwen Landolt said the Chief Justice's remarks show a "total lack of understanding of thse principles of democracy. The implications are horrendous," she said. "It's an exploitation of human sexuality. Fourteen year olds [the legal age for sexual consent] will be exploited."

Minority judges

Judges Michel Bastarche and Louis Lebel who wrote the minority decision clearly summed up the consequences: The majority decision "constitutes and unwarranted break with the most important principles of our past decisions regarding indecency.... This new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected."

Opposing voices

Finally, ordinary citizens provided a voice of reason in letters to the editor. Donald Wright, a Fredericton father of two girls, expressed resignation: "It's hard enough to raise two daughters in our already degraded and degrading culture. It's just gotten harder" (Globe and Mail, Dec. 23, 2005).

Dr. Ruth Dubin of Kingston, Ontario, wrote: "Our Supremes should be required to prove their 'lack of harm' thesis." She also asked why judges with no medical training are making decisions with the potential for horrendous public health ramifications. Shouldn't they also practise the motto of first "do no harm?" (Nat. Post, Dec. 29, 2005).

Another Post reader, writing to second Dr. Dubin's letter, cited Socrates who said that "genuine wisdom is knowing what you don't know" (Jan. 4, 2005).

Larry Devlin of North Vancouver wrote, "The Supreme Court is wrong in saying that such activities are victimless crimes. They will lead to further family breakdown, lack of inter-personal faith and worse. We and our children are all victims" (Nat. Post, Dec. 27, 2005).

Conclusion

There is no time to lose in preventing judges from continuing to act this way. Parliament must act and cut down their powers.

Kathline Nitsch writes from Toronto ON. She is a mother of three children.