R. v. Labaye

R. v. Labaye
Collection
Supreme Court Judgments
Date
2005-12-21
Neutral citation
2005 SCC 80
Report
[2005] 3 SCR 728
Case number
30460
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 30460
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80
Date: 20051221
Docket: 30460
Between:
Jean‑Paul Labaye
Appellant
and
Her Majesty The Queen
Respondent
Official English Translation: Reasons of Bastarache and LeBel JJ.
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 72)
Dissenting Reasons:
(paras. 73 to 154)
McLachlin C.J. (Major, Binnie, Deschamps, Fish, Abella and Charron JJ. concurring)
Bastarache and LeBel JJ.
______________________________
R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80
Jean‑Paul Labaye Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Labaye
Neutral citation: 2005 SCC 80.
File No.: 30460.
2005: April 18; 2005: December 21.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for quebec
Criminal law — Keeping common bawdy‑house — Indecency — Harm‑based test — Group sex in club — Whether conduct constitutes criminal indecency — Criminal Code, R.S.C. 1985, c. C‑46, ss. 197(1) “common bawdy‑house”, 210(1).
The accused was charged with keeping a common bawdy‑house for the practice of acts of indecency under s. 210(1) of the Criminal Code . The accused operated a club in Montréal the purpose of which was to permit couples and single people to meet each other for group sex. Only members and their guests were admitted to the club. Prospective members were interviewed to ensure that they were aware of the nature of the activities of the club. Members paid an annual membership fee. A doorman manned the main door of the club, to ensure that only members and their guests entered. The club had three floors. The first floor was occupied by a bar, the second a salon, and the third the “apartment” of the accused. Two doors separated the third floor apartment from the rest of the club. One was marked “Privé” and the other was locked with a numeric key pad. Members of the club were supplied with the appropriate code and permitted to gain access to the third floor apartment. This was the only place where group sex took place. Entry to the club and participation in the activities were voluntary. At trial, the accused was convicted. The trial judge found that the accused’s apartment fell within the meaning of “public place”, as defined in s. 197(1) of the Criminal Code . She also found social harm in the fact that sexual exchanges took place in the presence of other members of the club. She concluded that this conduct was indecent under the Criminal Code because it was degrading and dehumanizing, was calculated to induce anti‑social behaviour in its disregard for moral values, and raised the risk of sexually transmitted diseases. A majority of the Quebec Court of Appeal upheld the accused’s conviction.
Held (Bastarache and LeBel JJ. dissenting): The appeal should be allowed and the accused’s conviction set aside.
Per McLachlin C.J. and Major, Binnie, Deschamps, Fish, Abella and Charron JJ.: In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met. The first is 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 (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct. The categories of harm capable of satisfying the first branch of the inquiry are not closed. The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. This two‑branch test must be applied objectively and on the basis of evidence. [62]
In this case, the accused must be acquitted. The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct in question. On the evidence, only those already disposed to this sort of sexual activity were allowed to participate and watch. There is also no evidence of anti‑social acts or attitudes toward women, or for that matter men. No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that the club is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. The membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. Finally, with respect to the third type of harm, the only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually and causally unrelated to indecency. Since the Crown failed to establish the first requirement to prove indecent criminal conduct, it is unnecessary to proceed to the second branch of the test. If one did, there seems to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. [66‑71]
Per Bastarache and LeBel JJ. (dissenting): The application of the appropriate test leads to the conclusion that the impugned acts were indecent and that the accused’s establishment was a common bawdy‑house within the meaning of s. 210(1) of the Criminal Code . [76]
The new approach to indecency proposed by the majority is neither desirable nor workable. Not only does it constitute an unwarranted break with the most important principles of our past decisions regarding indecency, but it also replaces the community standard of tolerance with a harm‑based test. Whether or not serious social harm is sustained has never been the determinative test for indecency. Moreover, when the standard of tolerance is established on the basis of the three categories of harm, it becomes impossible to take into account the multitude of situations that could exceed the threshold for indecency. This new harm‑based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected. The existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient. Lastly, in the context of an offence under s. 210(1) of the Criminal Code , it is not absolutely necessary to consider the harm done to society. [75] [98‑104] [115]
To determine whether acts are indecent, it is preferable to continue applying the original test for indecency, which focusses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance. Whether or not harm is sustained is merely one of several indicators or contextual factors that make it possible to gauge the degree of tolerance of the Canadian community. Although a certain degree of subjectivity is inherent in the establishment of the standard of tolerance because of the judge’s role as interpreter of the community’s minimum standards regarding sex, the analysis remains objective as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus. [76] [134]
The question that must therefore be asked in the case at bar is as follows: “Do the impugned acts offend the standard of tolerance of the contemporary Canadian community, having regard to the place and context in which they occurred?” The following contextual factors 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. Regarding this last factor, attention must be paid to the risk of physical or psychological harm. This approach permits the risk of spreading sexually transmitted diseases to be taken into account. Finally, the consent of the participants or the fact that those present are informed adults is not in itself a determinative factor. A consensual sexual act that is totally 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. [81] [122] [131‑132]
In the case at bar, the impugned sexual acts were very explicit acts, and the place where the acts were performed was a public establishment. Although advertised as a private club, the accused’s club was a place to which the public had ready access “by invitation, express or implied”, within the meaning of s. 197(1) of the Criminal Code . All that was necessary was to pay the requested fee after a cursory interview that was quite superficial, or to be the guest of a club member. What is more, the measures taken by the club to control access did not adequately limit the public’s access to a place where very explicit sexual acts were performed. The establishment’s operations are also indicative of the commercial nature of the activities that took place there. Sexual acts could be performed on the third level of the establishment only after a mandatory commercial transaction between the participants and the owner of the establishment, since everyone had to pay a fee to become a member. The participants essentially purchased sexual services provided by other participants. In the instant case, it is even possible to conclude that a form of social harm has been sustained that results from the failure to meet the minimum standards of public morality. Finally, even though the participants were informed adults whose actions were consensual and voluntary and who presumably shared the philosophy of partner swapping, this characteristic of the participants is not relevant under s. 210(1) of the Criminal Code other than to demonstrate the existence of demeaning or dehumanizing acts. Considered in context, the explicit sexual acts performed in the accused’s establishment clearly offended the Canadian community standard of tolerance. The community does not tolerate the performance of acts of this nature in a place of business to which the public has easy access. The acts were therefore indecent. The public and commercial dimensions of the sexual practices in issue would lead to the conclusion that those practices were indecent even if there were no harm. [137‑141] [145‑148] [151‑153]
Cases Cited
By McLachlin C.J.
Applied: R. v. Butler, [1992] 1 S.C.R. 452; referred to: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Mara, [1997] 2 S.C.R. 630; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Brodie v. The Queen, [1962] S.C.R. 681; R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103, rev’d [1964] S.C.R. 251; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; R. v. Tremblay, [1993] 2 S.C.R. 932.
By Bastarache and LeBel JJ. (dissenting)
Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Mara, [1997] 2 S.C.R. 630; R. v. Tremblay, [1993] 2 S.C.R. 932; R. v. Butler, [1992] 1 S.C.R. 452; Brodie v. The Queen, [1962] S.C.R. 681; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Dominion News & Gifts (1962) Ltd. v. The Queen, [1964] S.C.R. 251; Provincial News Co. v. The Queen, [1976] 1 S.C.R. 89; Dechow v. The Queen, [1978] 1 S.C.R. 951; Germain v. The Queen, [1985] 2 S.C.R. 241; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Roux v. La Reine, [2001] R.J.Q. 567; R. v. Pelletier (1985), 27 C.C.C. (3d) 77; R. v. Angerillo, [2003] R.J.Q. 1977; R. v. Jacob (1996), 31 O.R. (3d) 350.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 163(8) , 167(1) , 197(1) “common bawdy-house”, “public place”, 210(1), 211, 212, 213.
Criminal Code, S.C. 1953‑54, c. 51, s. 150(8) [ad. 1959, c. 41, s. 11].
Authors Cited
LeBel, Louis. “Un essai de conciliation de valeurs: la régulation judiciaire du discours obscène ou haineux” (2001), 3(2) Éthique publique 51.
Mill, John Stuart. On Liberty and Considerations on Representative Government. Edited by R. B. McCallum. Oxford: Basil Blackwell, 1946.
APPEAL from a judgment of the Quebec Court of Appeal (Proulx, Rochon and Rayle JJ.A.), [2004] R.J.Q. 2076, 191 C.C.C. (3d) 66, [2004] Q.J. No. 7723 (QL), upholding the accused’s conviction on a charge of keeping a common bawdy-house, [1999] R.J.Q. 2801, [1999] Q.J. No. 2524 (QL). Appeal allowed, Bastarache and LeBel JJ. dissenting.
Robert La Haye and Josée Ferrari, for the appellant.
Normand Labelle, for the respondent.
The judgment of McLachlin C.J. and Major, Binnie, Deschamps, Fish, Abella and Charron JJ. was delivered by
The Chief Justice —
1. Introduction
1 The appellant appeals from a conviction of keeping a “common bawdy- house” for the “practice of acts of indecency” under s. 210(1) of the Criminal Code, R.S.C. 1985, c. C-46 . The issue is whether the acts committed in his establishment were acts of indecency within the meaning of our criminal law.
2 Defining indecency under the Criminal Code is a notoriously difficult enterprise. The Criminal Code offers no assistance, leaving the task to judges. The test developed by the cases has evolved from one based largely on subjective considerations, to one emphasizing the need for objective criteria, based on harm. This heightened emphasis on objective criteria rests on the principle that crimes should be defined in a way that affords citizens, police and the courts a clear idea of what acts are prohibited. (See Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, per Lamer J.) We generally convict and imprison people only where it is established beyond a reasonable doubt that they have violated objectively defined norms. Crimes relating to public indecency are no exception.
3 This appeal requires us to apply the norms developed in recent cases to the operation of clubs established to facilitate group sex, a practice colloquially referred to as “swinging”. This in turn invites further refinement of the objective criteria for indecency under the Criminal Code .
4 I conclude that the appellant’s conviction should be quashed.
2. Facts
5 The appellant operated a club in Montréal, called L’Orage. The purpose of the club was to permit couples and single people to meet each other for group sex. Only members and their guests were admitted to the club. Prospective members were interviewed to ensure that they were aware of the nature of the activities of the club and to exclude applicants who did not share the same views on group sex. Members paid an annual membership fee.
6 At the time of the events giving rise to the charge against the appellant, the club L’Orage had three floors. The first floor was occupied by a bar, the second a salon, and the third the “apartment” of the appellant. A doorman manned the main door of the club, to ensure that only members and their guests entered. Two doors separated access to the third floor apartment from the rest of the club. One was marked “Privé” (Private) and the other locked with a numeric key pad.
7 Members of the club were supplied with the appropriate code and permitted to access the third floor apartment. This was the only place where group sex took place. A number of mattresses were scattered about the floor of the apartment. There people engaged in acts of cunnilingus, masturbation, fellatio and penetration. On several occasions observed by the police, a single woman engaged in sex with several men, while other men watched and masturbated.
8 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. While men considerably outnumbered women on the occasions when the police visited, there is no suggestion that any of the women were there involuntarily or that they did not willingly engage in the acts of group sex.
3. Judicial History
9 According to Baribeau J., the test of indecency required assessing the public or private context of the activities at issue ([1999] R.J.Q. 2801). She found that the appellant’s apartment fell within the meaning of “public place”, defined in s. 197(1) of the Criminal Code as including “any place to which the public have access as of right or by invitation, express or implied”. The trial judge attached no significance to the fact that the public here was composed of members of the club and their guests. Based on the public nature of the locale, the trial judge concluded that the sexual practices on these facts fell below the Canadian community standard of tolerance.
10 The trial judge, relying on R. v. Mara, [1997] 2 S.C.R. 630, found social harm in the fact that sexual exchanges took place in the presence of other members of the club. In her view, this conduct was indecent under the Criminal Code because it was degrading and dehumanizing, was calculated to induce anti-social behaviour in its disregard for moral values, and raised the risk of sexually transmitted diseases.
11 A majority of the Quebec Court of Appeal upheld the appellant’s conviction ((2004), 191 C.C.C. (3d) 66). Rochon J.A. held that the activities at issue were prejudicial to society because of the health risks involved and the propagation of a degrading and dehumanizing view of sexuality. Rayle J.A. agreed, inferring a more substantial risk of harm than in Mara from the higher number of sexual partners involved. In the view of the majority, the voluntary character of their participation did not diminish the resulting degradation, loss of integrity and self-respect.
12 Proulx J.A., dissenting, found that the trial judge’s conviction was based on several errors. Even if the establishment was a public place, as defined in the Criminal Code , members of the club did not perform the sexual acts in open public view, but in a context of relative privacy. Entrants were screened and informed. All the participants retained their full autonomy. The sexual exchanges they participated in reflected their personal choice and view of sexuality. Since there was no meaningful distinction between participants and observers, the presence of observers was not relevant for assessing the publicly indecent character of the activities. Moreover, there was no social harm comparable to that identified in Mara, where the payment of women for sexual services led to an inference of exploitation.
4. Analysis
4.1 The Legal Test for Criminal Indecency
4.1.1 The History of Criminal Indecency
13 Section 210(1) of the Criminal Code makes it an offence, punishable by two years in prison, to keep a common bawdy-house. A bawdy-house is defined in s. 197(1) of the 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”. The only question in this case is whether what went on at L’Orage constituted “acts of indecency”.
14 Indecency has two meanings, one moral and one legal. Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community. But 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 could function only with a generous measure of tolerance for minority mores and practices. This led to a legal norm of objectively ascertainable harm instead of subjective disapproval.
15 Canadian law on indecent acts, from its origins in the English common law, has been firmly anchored in societal rather than purely private moral concerns. For example, in the early case of R. v. Hicklin (1868), L.R. 3 Q.B. 360, Cockburn C.J. stated that the test for obscenity was whether the material would tend to deprave and corrupt other members of society.
16 However, depravity and corruption vary with the eye of the beholder, and the Hicklin test proved difficult to apply in an objective fashion. Convictions often depended more on the idiosyncracies and the subjective moral views of the judge or jurors than objective criteria of what might deprave or corrupt. Nevertheless, the Hicklin test remained in place for almost a century.
17 In 1959, the Canadian Parliament introduced a new “undue exploitation of sex” test for obscene materials: s. 150(8) of the Criminal Code, S.C. 1953-54, c. 51 (added by S.C. 1959, c. 41, s. 11) (now s. 163(8) ). In considering this test, the Supreme Court emphasized the failings of the previous test and the need for new criteria “which have some certainty of meaning and are capable of objective application and which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury”: Brodie v. The Queen, [1962] S.C.R. 681, at p. 702, per Judson J.
18 Borrowing on decisions from Australia and New Zealand emphasizing the foundation of criminal legislation on obscenity and indecency in societal norms, the Court adopted a test based on the community standard of tolerance. On its face, the test was objective, requiring the trier of fact to determine what the community would tolerate. Yet once again, in practice it proved difficult to apply in an objective fashion. How does one determine what the “community” would tolerate were it aware of the conduct or material? In a diverse, pluralistic society whose members hold divergent views, who is the “community”? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct at issue? In practice, once again, the test tended to function as a proxy for the personal views of expert witnesses, judges and jurors. In the end, the question often came down to what they, as individual members of the community, would tolerate. Judges and jurors were unlikely, human nature being what it is, to see themselves and their beliefs as intolerant. It was far more likely that they would see themselves as reasonable, representative members of the community. The chances of a judge or juror saying, “I view this conduct as indecent but I set that view aside because it is intolerant”, were remote indeed. The result was that despite its superficial objectivity, the community standard of tolerance test remained highly subjective in application.
19 Freedman J.A., dissenting in the Manitoba Court of Appeal, while noting the difficult challenge of applying the new community standard of tolerance test in an objective fashion, concluded that it was the only alternative to pure subjectivity (R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103). In a passage adopted by the Supreme Court of Canada ([1964] S.C.R. 251), Freedman J.A. wrote:
Those standards are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered. Obviously this is no easy task, for we are seeking a quantity that is elusive. Yet the effort must be made if we are to have a fair objective standard in relation to which a publication can be tested as to whether it is obscene or not. The alternative would mean a subjective approach, with the result dependent upon and varying with the personal tastes and predilections of the particular Judge who happens to be trying the case. [p. 116]
20 In 1985, the Supreme Court pursued the search for objectivity by introducing a two-part definition of community standards of tolerance in Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494. The first way to establish obscenity (undue exploitation of sex) was to show that the material violated the norm of tolerance of what Canadians would permit others, whose views they did not share, to do or see (p. 508). The second was to show that the material would have a harmful effect on others in society (p. 505). Although this notion of harm had been implicit in Cockburn C.J.’s definition of obscenity in Hicklin, Towne Cinema marked the first clear articulation of the relationship between obscenity and harm in Canadian jurisprudence, and represented the beginning of a shift from a community standards test to a harm-based test.
21 The shift to a harm-based rationale was completed by this Court’s decisions in R. v. Butler, [1992] 1 S.C.R. 452, and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69. In Butler, the two-part test for obscenity of Towne Cinema was resolved into a single test, in which the community standard of tolerance was determined by reference to the risk of harm entailed by the conduct:
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. [Emphasis added; p. 485, per Sopinka J.]
22 The Court in Little Sisters confirmed that harm is an essential ingredient of obscenity. As Binnie J. pointed out, “the phrase ‘degrading or dehumanizing’ in Butler is qualified immediately by the words ‘if the risk of harm is substantial’ . . . . This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the community’s tolerance” (para. 60 (emphasis added)).
23 In Mara, the Court affirmed that in cases of indecency, like obscenity, the community standard of tolerance test amounts to a test of harm incompatible with society’s proper functioning.
24 Grounding criminal indecency in harm represents an important advance in this difficult area of the law. Harm or significant risk of harm is easier to prove than a community standard. Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of the law into step with the vast majority of criminal offences, which are based on the need to protect society from harm.
25 However, it is not always clear precisely how the harm test for indecency applies in particular circumstances. New cases have raised questions as to the nature and degree of harm sufficient to establish indecency. Further definition is required in order to resolve cases like this, and to permit individuals to conduct themselves within the law and the police and courts to enforce the criminal sanction in an objective, fair way.
4.1.2 Toward a Theory of Harm
26 Developing a workable theory of harm is not a task for a single case. In the tradition of the common law, its full articulation will come only as judges consider diverse situations and render decisions on them. Moreover, the difficulty of the task should not be underestimated. We must proceed incrementally, step by cautious step.
27 The facts of this case require the further exploration of what types of harm, viewed objectively, suffice to found a conviction for keeping a bawdy-house for the purposes of acts of indecency. This exploration must be based on the purposes that the offence serves. More precisely, what harms are sought to be curtailed by targeting indecent conduct?
28 The first step is to generically describe the type of harm targeted by the concept of indecent conduct under the Criminal Code . In Butler at p. 485 and Little Sisters at para. 59, this was described as “conduct which society formally recognizes as incompatible with its proper functioning”.
29 Two general requirements emerge from this description of the harm required for criminal indecency. First, the words “formally recognize” suggest that the harm must be grounded in norms which our society has recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning, but must be incompatible with it.
30 It follows that the analysis to be performed in a particular case involves two steps. The first step is concerned with the nature of the harm. It asks whether the Crown has established a harm or significant risk of harm to others that is grounded in norms which our society has formally recognized in its Constitution or similar fundamental laws. The second step is concerned with the degree of the harm. It asks whether the harm in its degree is incompatible with the proper functioning of society. Both elements must be proved beyond a reasonable doubt before acts can be considered indecent under the Criminal Code .
31 I now turn to a more detailed consideration of each of the two requirements for establishing indecent acts for the purposes of s. 210 of the Criminal Code .
4.1.3 The Nature of the Harm: Harm to Individuals or Society Contrary to Society’s Norms
32 To ground criminal responsibility, the harm must be one which society formally recognizes as incompatible with its proper functioning: Butler, at p. 485.
33 The requirement of formal societal recognition makes the test objective. The inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its fundamental laws, has recognized as essential. Views about the harm that the sexual conduct at issue may produce, however widely held, do not suffice to ground a conviction. This is not to say that social values no longer have a role to play. On the contrary, to ground a finding that acts are indecent, the harm must be shown to be related to a fundamental value reflected in our society’s Constitution or similar fundamental laws, like bills of rights, which constitutes society’s formal recognition that harm of the sort envisaged may be incompatible with its proper functioning. Unlike the community standard of tolerance test, the requirement of formal recognition inspires confidence that the values upheld by judges and jurors are truly those of Canadian society. Autonomy, liberty, equality and human dignity are among these values.
34 The complexity of the guarantee of freedom of religion in this context requires further comment. The claim that particular sexual conduct violates particular religious rules or values does not alone suffice to establish this element of the test. The question is what values Canadian society has formally recognized. Canadian society through its Constitution and similar fundamental laws does not formally recognize particular religious views, but rather the freedom to hold particular religious views. This freedom does not endorse any particular religious view, but the right to hold a variety of diverse views.
35 The requirement of formal endorsement ensures that people will not be convicted and imprisoned for transgressing the rules and beliefs of particular individuals or groups. To incur the ultimate criminal sanction, they must have violated values which Canadian society as a whole has formally endorsed.
36 Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency: (1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct. Each of these types of harm is grounded in values recognized by our Constitution and similar fundamental laws. The list is not closed; other types of harm may be shown in the future to meet the standards for criminality established by Butler. But thus far, these are the types of harm recognized by the cases.
37 Reference to the fundamental values of our Constitution and similar fundamental laws also eliminates types of conduct that do not constitute a harm in the required sense. Bad taste does not suffice: Towne Cinema, at p. 507. Moral views, even if strongly held, do not suffice. Similarly, the fact that most members of the community might disapprove of the conduct does not suffice: Butler, at p. 492. In each case, more is required to establish the necessary harm for criminal indecency.
38 A particular type of conduct may involve several types of harm; life does not fall into neatly tagged juridical boxes. But since each type of harm rests on its own set of values, it is useful to consider each independently. Being clear about the type of harm raised by the facts of a particular case, helps to determine what factors are relevant to assessing whether it rises to the degree prescribed in Butler. It ensures that the analysis is truly contextual, and is not skewed by factors that may not be relevant to the particular harms alleged in the case.
39 Against this background, I turn to a closer look at the three types of harm that may ground a finding of criminal indecency. If harm in any of these senses is established beyond a reasonable doubt, the inquiry then proceeds to the second step of the Butler test, to assess whether the nature and quality of the harm rises to the required degree.
4.1.3.1 The Harm of Loss of Autonomy and Liberty Through Public Confrontation
40 The first is the harm of public confrontation with unacceptable and inappropriate conduct. One reason for criminalizing indecent acts and displays is to protect the public from being confronted with acts and material that reduce their quality of life. Indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct. This harm is conceptually akin to nuisance. Nevertheless, to call this the “eyesore” basis of criminalization of indecent acts is to trivialize the harm. The harm is not the aesthetic harm of a less attractive community, but the loss of autonomy and liberty that public indecency may impose on individuals in society, as they seek to avoid confrontation with acts they find offensive and unacceptable. The value or interest protected is the autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them.
41 Much harm in this category does not rise to the levels of harm required by Butler and Little Sisters. Tolerance requires that only serious and deeply offensive moral assaults can be kept from public view on pain of criminal sanction. We live in an age when sexual images, some subtle and some not so subtle, are widely dispersed throughout our public space. However, this does not negate the fact that even in our emancipated society, there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains autonomy. Sexual relations are an intensely personal, religious and age-sensitive matter. People’s autonomy and enjoyment of life can be deeply affected by being unavoidably confronted with debased public sexual displays. Even when avoidance is possible, the result may be diminished freedom to go where they wish or take their children where they want. Sexual conduct and material that presents a risk of seriously curtailing people’s autonomy and liberty may justifiably be restricted. The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond. If the risk of harm is significant enough, it may rise to the degree of the test for criminal indecency in Butler — conduct which society formally recognizes as incompatible with its proper functioning.
42 Since the harm in this class of case is based on the public being confronted with unpalatable acts or material, it is essential that there be a risk that members of the public either will be unwillingly exposed to the conduct or material, or that they will be forced to significantly change their usual conduct to avoid being so exposed.
43 This makes relevant the manner, place and audience of the acts alleged to be indecent. In this respect, indecency differs from obscenity, where an element of public exposure is presumed: Butler, at p. 485. As stated in R. v. Tremblay, [1993] 2 S.C.R. 932, at p. 960, “the place in which the acts take place and the composition of the audience” may affect whether acts are indecent.
44 While these factors inform the factual and contextual determination of indecency, they are merely subsidiary and instrumental to the ultimate finding of harm. Whether certain acts are indecent cannot simply depend on whether they are performed in a “public place”, as defined in the Criminal Code . Tremblay cautioned against an overly simplistic reliance on this factor, as “common sense indicates that there are great differences between locations which can come within the definition of public places” (p. 970). More importantly, exclusive reliance on the public nature of the place is at odds with the harm-based rationale for criminal indecency. Indecency targets harm or significant risk of harm to members of the public, which has to be established on the evidence and cannot be presumed or automatically inferred from the nature of the location where the acts take place.
4.1.3.2 The Harm of Predisposing Others to Anti-social Acts or Attitudes
45 The second source of harm is based on the danger that the conduct or material may predispose others to commit anti-social acts. As far back as Hicklin, Cockburn C.J. spoke of using the criminal law to prevent material from depraving and corrupting susceptible people, into whose hands it may fall. The threshold for criminal indecency is higher under Butler than that envisioned by Cockburn C.J. almost a century and a half ago, but the logic is the same: in some cases, the criminal law may limit conduct and expression in order to prevent people who may see it from becoming predisposed to acting in an anti-