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Swingers' clubs made lawful: the December 21, 2005 Labaye ruling.

With the unprecedented, seven-to-two ruling in R. v. Labaye on December 21, 2005, the Supreme Court of Canada took judicial activism to a new extreme, by legalizing group sex in a public place. The Court had no authority in law, precedent, or the Constitution for this illegitimate exercise of raw judicial power.

The appellant in this case, Jean-Paul Labaye, operated L'Orage ("The thunderstorm"), a club in Montreal where perverts met each other for group sex. Citing police reports, the trial judge gave several examples of sexual behaviour in the club such as the shameless conduct of a naked woman and four naked men who performed various sex acts on each other, while other men watched and masturbated.

Police duly charged Labaye with violating section 210 (1) of the Criminal Code, which provides: "Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years." In section 197(1), the Code states:

"common bawdy-house" means a place that is (a) kept or occupied, or (b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency.

The trial judge found Labaye guilty as charged and the Quebec Court of Appeal upheld the conviction only to have the Supreme Court of Canada arbitrarily acquit the club operator. Chief Justice Beverley McLachlin held in her reasons for Canada's top court that the sexual antics which took place in L'Orage did not constitute "acts of indecency" within the meaning of the Criminal Code.

A preposterous decision

How could she have arrived at such a manifestly preposterous conclusion? Judges, like the rest of us, are supposed to uphold the plain language of the law as originally enacted and understood. Sir William Blackstone underlined this cardinal rule of interpretation in his magisterial Commentaries on the Laws of England. The words of a statute, he wrote, "are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use."

Elmer Driedger, a Canadian authority on the interpretation of statutes, expressed essentially the same view in his text The Construction of Statutes. He wrote: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

Chief Justice Antonio Lamer of the Supreme Court of Canada followed the orthodox approach to statutory interpretation in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1999 SCC, a case that also dealt with the ban in the Criminal Code on the practice of acts of indecency in a common bawdyhouse. He stated: "The appropriate test to apply in this area is the 'community standard of tolerance' similar to the test used in obscenity cases which this and other courts have interpreted and applied without insurmountable difficulty."

In taking this stance, Lamer not only upheld the plain meaning of the law as originally understood, but also followed another cardinal principle of judicial interpretation--the rule of precedent known as stare decisis. As defined in the authoritative Black's Law Dictionary, this rule requires that, "when [a] court has once lain down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same." This rule is not absolute. Judges are not bound to follow an illegitimate precedent like the ruling of the Supreme Court of Canada in R. v. Morgentaler, 1988, which eliminated restrictions on abortion in the Criminal Code, because this ruling had no basis in common law, statute law, the Canadian Charter of Rights and Freedoms, or the Constitution of Canada.

Community standards

In contrast, Mr. Justice Wilfred Judson of the Supreme Court of Canada set a valid precedent in Brodie v. The Queen, 1962 SCC, by advancing "the community standard of tolerance" as the test for obscenity. This ruling was well calculated to uphold the original understanding of the plain meaning of the law on obscenity in s. 163(8) of the Criminal Code which states: "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." Judson emphasized that, in applying this law, a trial judge should not rely upon his own sensitivities, but seek to uphold the contemporary standards of the community on what constitutes undue exploitation of sex.

In Towne Cinema Theatres Ltd. v. The Queen, 1985 SCC, Chief Justice Brian Dickson likewise stated that in dealing with obscenity, a judge should be mindful that "the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one's own personal ideas of what is tolerable." However, Dickson went on to hold that the community standard of tolerance is not the only criterion for determining if material is obscene. He added: "There are other ways in which exploitation of sex might be 'undue.' Ours is not a perfect society and it is unfortunate but true that the community may tolerate publications that cause harm to members of society and therefore to society as a whole."

Chief Justice Dickson

Dickson took the view that it was up to virtuous judges like himself to protect the public from harmful obscenities that most Canadians might tolerate. He wrote: "Even if certain sex-related materials were found to be within the standard of tolerance of the community, it would still be necessary to ensure that they were not 'undue' in some other sense, for example in the sense that they portray persons in a degrading manner as objects of violence, cruelty, or other forms of dehumanizing treatment."

Dickson had no warrant for this modification of Judson's community standard of tolerance test for obscenity. Neither in Towne Cinema Theatres nor in any other case has the Supreme Court of Canada found an instance where most Canadians have tolerated sex-related materials that cause harm to members of society by portraying persons in a degrading manner.

More changes

In R. v. Butler, 1992 SCC, Mr. Justice John Sopinka proceeded to change the law on obscenity once more, by conflating Dickson's two-fold test of tolerance and harm into one test based essentially on harm. Sopinka wrote:

The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance.

Sopinka had no justification in law or precedent for devising this harm-based approach to obscenity. With the backing of like-minded colleagues on the Supreme Court of Canada, he arbitrarily changed the law through interpretation. In so doing, the Court gave pornographers free rein to publish any filth that exceeds the Canadian community standard of tolerance provided only that the material is not so extreme as to provably predispose persons to act in an anti-social manner that is incompatible with the proper functioning of Canadian society.

Chief Justice McLachlin

In R. v. Labaye, Chief Justice McLachlin has outdone even Sopinka in changing the law on indecency, by eliminating the community standard of tolerance as a test altogether. Instead, she ordained:

Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:

1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example: (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or (b) predisposing others to anti-social behaviour; or (c) physically or psychologically harming persons involved in the conduct, and 2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.

Having promulgated this new test for indecency, McLachlin applied it to the facts of the Labaye case. First, she found that the orgies in the L'Orage club did not constrict the autonomy and liberty of members of the public, because the club's doorman admitted only fee-paying members and their guests who were willing spectators or participants in group sex.

Second, she held that the orgies did not predispose others to anti-social behaviour. She wrote: "No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others." Is that so? Four men performed various sexual acts on one woman while other men looked on and masturbated, yet McLachlin and the jaded majority of her colleagues pretend that these men did not treat this all-too-willing woman as a mere sexual object for their perverted gratification.

"Finally," she wrote, "there is no evidence of the third type of harm--physical or psychological harm to persons participating." What about the obviously grave risks of contracting AIDS and other incurable diseases through group sex? McLachlin dismissed the "possible danger" of catching a sexually transmitted disease through group sex on the peculiar ground that "it is conceptually and causally unrelated to indecency."

In summation, McLachlin wrote: "I conclude that the evidence provides no basis for concluding that the sexual conduct at issue harmed individuals or society." Having found that Labaye had not violated this first part of her new test for indecent criminal conduct, McLachlin had no need to address the second part of her test. Regardless, she gratuitously observed: "There appears to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society."

Mr. Justice Andre Rochon

By such reasoning, McLachlin held that Labaye should be acquitted. In coming to the opposite conclusion, Mr. Justice Andre Rochon of the Quebec Court of Appeal wrote: "What seems to emerge plainly from the community consensus is that Canadians do not tolerate orgies." McLachlin rejected the argument on the ground that "this reasoning erroneously harks back to the community standard of tolerance test, which has been replaced, as discussed, by the harm-based test developed in Butler."

Dissenting Justices

In a stinging dissent to the judgment of the Supreme Court of Canada in Labaye, Justices Michel Bastarache and Louis LeBel pointed out that the new approach to indecency imposed by the Court is "neither desirable nor workable," and "constitutes an unwarranted break with the most important principles of our past decisions regarding indecency." Bastarache and LeBel explained:

Our colleagues' approach replaces the community standard of tolerance with a test that treats harm as the basis of indecency rather than as a criterion for determining the community's level of tolerance. Whether or not serious social harm is sustained has never been the determinative test for indecency, and it cannot 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.

Final comment

Bastarache and LeBel are surely right. With the ruling in Labaye, the Supreme Court of Canada has annulled the law on indecency in the Criminal Code. As a result, commercial clubs for group sex are now free to proliferate their degrading orgies across Canada.

Who knows what law the Supreme Court of Canada will change or eliminate next? The ban on polygamy in the Criminal Code is an obvious candidate. Having legalized consensual group sex between several men and a woman in a public nightclub, the unprincipled judicial activists on our top court are all too likely to find that a man or woman has a right to indulge in marital relations with several spouses in the privacy of their home.

Prime Minister Stephen Harper and his Conservative cabinet colleagues have vowed to revive parliamentary democracy and the rule of law in Canada. To fulfil this promise, they must somehow curb the arbitrary rule of our robed dictators on the Supreme Court of Canada. Sooner rather than later, these rogue judges should be made to understand that Canadians are no longer willing to put up with arrogant and immoral judicial activists who think they have a God-given right to usurp the legislative powers of elected representatives of the people in Parliament and the provincial legislatures.

Rory Leishman is the author of the forthcoming book Against Judicial Activism The Decline of Freedom and Democracy in Canada (McGill/Queens University Press, Montreal). He has also been published in Judicial Activism: A threat to democracy and religion (2004). It is available from Life Ethics Information Centre, (416) 204-9601,
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Title Annotation:COLUMNIST
Author:Leishman, Rory
Publication:Catholic Insight
Geographic Code:1CANA
Date:Apr 1, 2006
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