Supreme Court Labaye ruling: the other side to Group Sex at L'Orage.

In February 2006, Catholic Insight published the editorial "Supreme Court's indecency interpretation unacceptable." It dwelt mainly on the agnostic character of tae December 21, 2005 ruling. In April, our columnist Rory Leiskman presented a historical overview of how Canada's Supreme Court has shifted the arguments over "indecency" in the Criminal Code away from community standards to judge-interpreted "harm," and from there to tae practical impossibility today of proving what harm is ("Swingers' clubs made lawful. The December 28, 2005, Labaye ruling," pp. 9-11).

George Carruthers hereby presents the arguments in favour of community standards, as explained by the two dissenting justices and the Quebec Court of Appeal whose decision was overthrown. Finally, we draw our readers' attention to Doug McManaman's article "The Charter and the Supremacy of God," C.I., Dec. 2005, pp. 12-13. We invite other knowledgeable contributions in exploring how we can halt the devastating consequences of "post-modern secularism," legally, philosophically, and practically.--Editor

Mr. Jerry Paradis, a retired B.C. provincial judge and now a contributor to the North Shore News, Vancouver, was not content with simply praising the 7-2 majority Supreme Court of Canada decision in R. v. Labaye, setting aside the conviction of Labaye for keeping a common bawdy house. He also seized the opportunity to mock those who opposed the decision on moral grounds (Jan. 18, 2006). There's opposition to such a progressive decision, he stated, because our society is "grounded in a Christian ethic" that " both fears and loathes the sexual side of humanity." No support was provided for this gratuitous and ignorant assertion.

Further, Mr. Paradis chose not to tell us of the secular, legal, and common sense reasons for the vigorous dissent by two distinguished justices who agreed with Labaye's conviction by the Quebec courts.

I shall briefly summarize the reasons for their dissent and let the readers decide whether the findings of the majority or minority are in accord with our community's standards and whether we would tolerate Mr. Labaye's establishment in our community, across the street, for example, from a local high school.

The Montreal bawdy house

A review of the facts will help the reader understand why the Quebec trial judge and two of the three judges on the Quebec Court of Appeal, and the minority of two of the Supreme Court Justices, favoured Labaye's conviction. A bawdy house is defined in the Criminal Code as a place kept, occupied, or resorted to "by one or more persons for the purpose of prostitution or the practice of acts of indecency." Club l'Orage ("The Thunderstorm") was clearly a public enterprise and was located in a commercial building.

A concerted effort was made by Labaye to attract new members through publications, the media, and trade fairs. Indeed, at one such event, up to 3,000 brochures were distributed to the public. All 800 members of L'Orage and their guests had access to the common area, where eight mattresses on the floor constituted the show stage for group sex. The widest range of sexual practices took place among members and invited guests, including occasions when a single woman engaged in sex with several men while other men watched and masturbated.

The trial judge held that L'Orage was a place to which the public had access by express or implied invitation and could enter it very easily. The minority also considered L'Orage a place with a decidedly public character. It was not a closed circle whose members shared the same philosophy and swapped partners in private.

Majority ruling: harm

Discarding the Court's own established law, the majority crafted a new test requiring the Crown to prove beyond a reasonable doubt that by its nature the conduct at issue caused harm or presented a significant risk of harm to individuals or society. They regarded grounding criminal indecency in harm as an important advance. The existence of harm is to be determined, they said, by applying certain criteria, and ultimately concluded that consensual conduct behind code-locked doors (known to all 800 members) could hardly jeopardize a "society as vigorous and tolerant as Canadian society."

What is indecency?

The minority viewed the fundamental issue to be about what constitutes indecency, and in what circumstances the conditions required to establish indecency will lead to the conclusion that a common bawdy house was being kept.

Indecency, the minority stated, concerns sexual behaviour or the representation of sexual behaviour that is neither obscene nor immoral, but inopportune or inappropriate according to Canadian standards of tolerance because of the context in which it takes place.

The novel approach taken by the majority, they said, was neither desirable nor workable. It could not take the place of a contextual analysis of the Canadian community standard of tolerance without completely transforming the concept of indecency and rendering it meaningless.

In departing from the Court's past decisions regarding indecency, the majority effectively replaced the community standard of tolerance test with one based on harm, an innovation for which the minority could find no support in case law. The minority noted that whether or not serious social harm is sustained has never been the determinative test for indecency.

The new approach by the majority stripped of all relevance the social values that the Canadian community as a whole believes should be protected. In the words of the minority, social morality, which is inherent in indecency offences, must still be allowed to play a role in all situations where it is relevant. In the minority's view there was no justification for requiring proof that the sexual practices at issue would lead to social disorder.

The minority also noted that according to current Canadian social morality, acts such as child pornography, incest, polygamy and bestiality are unacceptable regardless of whether or not they cause social harm. In fact the existence of harm has never been a prerequisite for exercising the state's power to criminalize certain conduct: the existence of fundamental social considerations is sufficient. Further, it was not absolutely necessary to consider the harm done to society to convict Labaye of the offence with which he was charged.

Standard of tolerance

Applying the traditional test of tolerance, the minority would ask the question: 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 consent of the participants would not be considered a determinative factor since a consensual sexual act that may be 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.

The eight factors the minority stated that 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.

Applying the above factors to the evidence, the minority would have upheld Mr. Labaye's conviction. In their view a contextual analysis established that the impugned acts exceeded the Canadian public's threshold of tolerance. Referring to a few of their reasons, Club L'Orage was a money-making venture; only those who did not share the club's philosophy were declined membership; and guests were not warned by the operator of the on-scene activities. The risk of psychological or physical harm, including the risk of spreading sexually transmitted diseases, was a relevant consideration.

STDs and sexual exploitation

Canadian tolerance of sexual practices is influenced by the risks of spreading STDs. The consent of the participants was irrelevant since the tolerance of the general public is what is important in law. Group sexual practices are not the norm. Expert evidence adduced at trial established that most Quebeckers do not wish to take part in partner-swapping or group sex, which is engaged in by only 2% to 5% of the population. The expert further testified that Canadians generally tolerate partner-swapping, but not in a public place. Some of the practices at L'Orage could be considered degrading, given that the types of sexual acts between several men and a single woman could lead, in the minority's view, to the exploitation or degradation of women wherein their bodies simply are used as objects of sexual gratification.

Yes to harm

In the minority's view, Canadians are not inclined to tolerate the commercial exploitation of sexual activities, which is contrary to a number of values of the Canadian community, such as equality, liberty and human dignity. Whether or not social harm has been sustained is not, they said, a determinative factor in establishing indecency. It may, however, assist in gauging the degree of community tolerance when humiliating, degrading or demeaning acts are performed.

In the minority's view, the impugned sexual acts at L'Orage caused a certain form of social harm resulting from the failure to meet the minimum standards of public morality. The minority's analysis caused it to conclude that the Canadian community would not tolerate, in a commercial establishment to which the public had access, group sexual activities on the scale that took place at L'Orage. Accordingly the minority would have dismissed Labaye's appeal and upheld his conviction.

In deciding whether the views of the majority or the minority are in accord with our community's standards and whether we would tolerate such an establishment in our neighbourhood, readers may wish to consider the following: to quote Mr. Paradis, sexual activity "can, and often does, involve immoral conduct (deceit, betrayal, physical or psychological harm, for example)." Can there be any doubt that serious harm was caused by the activities at L'Orage?

The decision of the majority will be invoked by lawyers to stop any municipality from preventing a "swingers" club from opening in any neighbourhood, thus converting public orgies into a conventional commercial proposition. How long will it take our youth 14 years of age and older (the Liberal age of consent) to consider such activities cool and make themselves subject to being sexually exploited?

Wherein lies the authority of the Supreme Court to write into Canadian law tests that have the effect of negating both the letter and spirit of the law enacted by Parliament?

George Carrubers retired in June 2005 after 35 years' service with the B.C. Regional Office of the federal Department of Justice. He is a graduate of St. Paul's College, University of Manitoba and Law School of The University of Western Ontario, in London.