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Description of the Criminal Section Most recent resolutions of the Criminal Section Criminal law study papers
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| Printable version |
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Criminal law study papers
A
REVIEW OF THE LAW OF INDECENCY AND NUDITY
INDECENCY
PROVISION IN THE CRIMINAL CODE THE ONTARIO
COURT OF APPEAL DECISION IN R v. JACOB EXPOSURE AND
BODY PARTS AND INDECENCY THE FEASIBILITY OF
MUNICIPAL REGULATION On July 19, 1991, in Guelph,
Ontario, a young woman took off her top and walked, topless, along the streets
of the city. Eventually, she arrived at a residence where she sat on the porch
for a period of time. She was seen by approximately 250 people. Some, young
men, came to leer; others to object. Some removed their children, who were
playing on their front lawns. Traffic was disrupted by cars and buses slowing
down to look. Eventually, the police arrived, as a result of complaints, and
the woman stated that she was hot and was more comfortable without her top on.
She was charged with committing an indecent act in a public place, contrary to
s.173(1) of the Criminal Code. She was convicted at trial. The conviction was
upheld by the Summary Conviction Appeal Court. On further appeal to the Ontario
Court of Appeal, the conviction was overturned and an acquittal entered. See
footnote 1 1 The Crown in Ontario reviewed the
case and decided not to appeal the decision to the Supreme Court of Canada. It
was concluded that there was no likelihood that leave would be granted by the
Supreme Court. The public reaction was strong and quite vocal. Hundreds of
letters and telephone calls from throughout the province of Ontario came
pouring in to the Attorney General of Ontario protesting the Ontario Court of
Appeal decision and requesting that some steps be taken to prevent public
toplessness by women. Throughout the summer of 1997, many Ontario municipal
councils considered and debated the issue of toplessness by women occurring in
their municipality and what, if any, action was to be taken about it. Many of
them wrote to the Attorney General of Ontario asking for the provincial
government to take some action. The Attorney General wrote to the federal
Minister of Justice, as did many members of the public from Ontario, asking for
changes to the criminal law. The problem was placed on the
table for discussion at the 1997 meeting of the Criminal Law Section of the
Uniform Law Conference. After a lengthy discussion, it was decided that further
work needed to be done before any specific recommendations could be made. The
following resolution was passed: That
a working group of the Criminal Section of the Uniform Law Conference be
established to examine the indecency and public nudity provisions of the
Criminal Code as well as the legal and constitutional issues related to the
feasibility of local (i.e. municipal) regulations and to report back at the
next Conference. This paper reviews the state of
the law relating to indecency and nudity, and the question whether local
regulations may be feasible to deal with problems of dress in public places. The current relevant sections of
the Criminal Code are sections 173 and 174. They state as follows:
(1) Every one who wilfully does an indecent act
(2) Every person who, in any place, for a sexual
purpose, exposes his or her genital organs to a person who is under the age of
fourteen years is guilty of an offence punishable on summary conviction. SECTION 174
(1) Every one who, without lawful excuse,
(2) For purposes of this section, a person is nude who
is so clad as to offend against public decency or order.
(3) No proceedings shall be commenced under this section
without the consent of the Attorney General. Other offences in the Criminal
Code that contain the concept of indecency are: Section
163(2)(b) [publicly exhibiting an indecent show] The development of the law
relating to indecency involves all of the above sections. The criteria used by
the courts to determine indecency are applicable to any section where the
concept of indecency is involved. 1. England The first offence of indecent
exposure has been identified as that of R. v. Sidley in 1663. See
footnote 2 2 In
this case, the accused appeared nude on a balcony in Covent Garden. The court
held that it was a misdemeanour at common law to expose the naked person. See
footnote 3 3 By
the nineteenth century, the exposure no longer needed to have occurred in a
public place: it
is sufficient if it is made where a number of persons may be offended by it and
several see it. See
footnote 4 4 By the mid-twentieth century, it
was held that it is "not necessary for the prosecution to prove that the
act of indecency in fact disgusted or annoyed those who actually saw it". See
footnote 5 5 The
test for indecency is whether the act in question would disgust and annoy any
ordinary members of the public who might be confronted by it. In addition to the common law
offences, there were statutory offences for bodily exposure: the Vagrancy
Act, 1824 section 4, the Town Police Clauses Act, 1847 as well as
other local ordinances and bylaws. See
footnote 6 6 Over and above offences directly
related to exposure of the body, there is also the common law offence of
"outraging public decency". See
footnote 7 7 This
offence was most recently applied in the case of Gibson and Sylveire. See
footnote 8 8 In
this case, the accused were involved with displaying a pair of earrings made
from freeze-dried human foetuses at an art gallery. The court affirmed the
existence of the common law offence of outraging public decency, and went on to
distinguish it from the offence of obscenity: There
are, it seems to us, two broad types of offence involving obscenity. On the one
hand are those involving the corruption of public morals, and on the other
hand, and distinct from the former, are those which involve an outrage on
public decency, whether or not public morals are involved...There is no
suggestion here that anyone is likely to be corrupted by the exhibiting of
these earrings. It seems to us that the two types of offence are both factually
and morally distinct. (pp.344-345) The distinction between indecency
and obscenity has become quite clear and well-established in England. The
matter was put in the following way by Parker, L.C.J. in the case of Stanley
See footnote 9 9
: The
words "indecent and obscene" convey one idea, namely, offending
against the recognized standards of propriety, indecent being at the lower end
of the scale and obscene at the upper end of the scale...an indecent article is
not necessarily obscene, whereas an obscene article almost certainly must be
indecent. The differentiation recognized
between indecency and obscenity by the courts in England is relevant and
important because, as will be seen below, Canadian courts have not made a
similar differentiation. The result is that in Canada, for the most part,
indecency requires the same gravity as obscenity. 2. CANADA A summary conviction offence
prohibiting indecency has been part of the Criminal Code since its inception in
1892. The earliest formulation was as follows: Every
one is guilty of an offence and liable, on summary conviction before two
justices of the peace, to a fine of fifty dollars or to six months'
imprisonment, who wilfully, The section was revised as part of
the overall 1953-54 revision See
footnote 11 11
where it took its present shape. An offence prohibiting nudity did
not become part of the Criminal Code until 1931: Every
one is guilty of an offence and liable upon summary conviction to three years
imprisonment who, while nude, The section was revised in 1953-54
to include a definition of "nude": a
person is nude who is so clad as to offend against public decency or order. See
footnote 13 13
As it was pointed out above, the
trend in England has been to distinguish between indecency and obscenity.
However, the law of indecency in Canada has been, and continues to be, heavily
influenced by the law of obscenity. One of the key analytical points of this
review is based on the fact that the transformation of the law of obscenity
from a "morals-based" offence to a "harm-based" offence has
proved to be problematic for indecency. It may be that the future development
of the law in this area would benefit from a recognized distinction between the
two offences, and given the current judicial state of mind linking the two offences,
such a change to the definition of indecency is one that must be made by
Parliament. 1. Criteria for determining
obscenity The law of obscenity in Canada has
its roots in English law. The 1868 decision of the House of Lords in R. v.
Hicklin was the leading case and set out the following test: The
test for obscenity is this: whether the tendency of the matter charged as
obscenity is to deprave and corrupt those who minds are open to such immoral
influences, and into who hands a publication of this sort may fall. See
footnote 14 14
This was the test used in Canada See
footnote 15 15
until the Criminal Code was amended in
1959 to include a definition of obscenity as: the
undue exploitation of sex, or of sex and any one or more of crime, horror,
cruelty and violence. See
footnote 16 16
Subsequent to this amendment,
Canadian courts shifted their focus from applying the Hicklin test to
determining how the "undue exploitation of sex" is to be assessed. The first Supreme Court of Canada
decision on this point is R. v. Brodie See footnote 17 17
where the court adopted the
"community standards test" developed in Australia and New Zealand. See
footnote 18 18
Judson, J. in his judgment endorses the
following: There
does exist in any community at all times - however the standard may vary from
time to time - a general instinctive sense of what is decent and what is
indecent, of what is clean and what is dirty...There are certain standards of
decency which prevail in the community, and [juries] are really called upon to
try [cases] because [they] are regarded as representing, and capable of justly
applying, those standards. What is obscene is something which offends against
those standards. (p.182) The development of the
jurisprudence since Brodie has elaborated and clarified the concept of
the community standard. It is:
- a general average of community thinking and feeling; See
footnote 19 19
The phrase now being used,
"community standard of tolerance" probably owes its origin to the use
of the word 'tolerance' found in McGillivray's, J.A. judgment in R. v.
Goldberg and Reitman but it is arguable that the addition of the word
'tolerance' did not add any substantive element or effect a change in the test
that had developed as of that point. An important development in the
test for obscenity occurred in the Supreme Court of Canada's decision in Towne
Cinema Theatres Ltd. v. The Queen. See
footnote 22 22
In this decision, Dickson, C.J.C. stated
that the community standard of tolerance is only one way in which the
exploitation of sex can be undue for the purposes of determining whether
material may be obscene: 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. Even if, at certain times, there is a coincidence between
what is not tolerated and what is harmful to society, there is no necessary
connection between these two concepts. Thus, a legal definition of
"undue" must also encompass publications harmful to members of
society and, therefore, to society as a whole. (page 202) Therefore, as a result of the
decision in Towne Cinema Theatres, material can be obscene if it is
harmful, or if it exceeds the Canadian community standard of tolerance, since
either of these tests will render the exploitation of sex in the material
undue. As far as the former criterion is concerned (viz. harm), material can be
considered harmful if it "portrays persons in a degrading manner as
objects of violence, cruelty or other forms of dehumanizing treatment"
(per Dickson, C.J.C. at p.202); the latter criteria was explained in the following
manner: [w]hat
matters is not what Canadians think is right for themselves to see. What
matters is what Canadians would not abide other Canadians seeing because it
would be beyond the contemporary Canadian standard of tolerance to allow them
to see it. (per Dickson, C.J.C. at p.205) See
footnote 23 23
Finally, the Supreme Court of
Canada reached its definitive decision in R. v. Butler. See
footnote 24 24
The significance of the decision was
based on the fact that the Court had to decide whether the obscenity provision
of the Criminal Code (s.163) was constitutionally valid in light of the right
to freedom of expression guaranteed by section 2(b) of the Canadian Charter of
Rights of Freedoms. See
footnote 25 25
In the Court's judgment, delivered
by Sopinka, J., there was a formal recognition of the two different criteria
established by Dickson, C.J.C. in Towne Cinema Theatres, namely
"harm" (manifested by degrading or dehumanizing depictions or
treatment of people in the material) and "community standard of
tolerance". But the decision begins to fuse the two criteria together. For
example, Sopinka, J. cites decisions where it was held that material that is
degrading or dehumanizing necessarily fails the community standards
test. See
footnote 26 26
Sopinka, J. concludes: This
review of jurisprudence shows that it fails to specify the relationship of the
tests one to another. Failure to do so with respect to the community standards
test and the degrading and dehumanizing test, for example, raises a serious
question as to the basis on which the community acts in determining whether the
impugned material will be tolerated. With both these tests being applied to the
same material and apparently independently, we do not know whether the
community found the material to be intolerable because it was degrading or
dehumanizing, because it offended against morals or on some other basis. (page
149) With respect, this statement may
show some misunderstanding of how the two criteria operate. The legal issue is
whether the material is obscene. This translates into whether the exploitation
of sex is undue. The determination of "undueness" can be based on two
separate inquiries: 1. Does
the material exceed the community standard of tolerance (as that has been
explained)? or 2.
Does the material cause harm (even though the community
standard of tolerance may accept the material)? It may be, as a purely
empirical matter of fact, that a positive answer to the first question
(i.e. the material exceeds the community's standard of tolerance) is because it
causes harm. In other words, at this point in time the community would not
tolerate others seeing the material because of its harmful nature. But this is
an entirely contingent matter. For example, the material may not cause harm and
yet still exceed the community's standard of tolerance because of its effect on
public morals. Or, as Dickson, C.J.C. rightly points out in Towne Cinema
Theatres, the material may cause harm and yet be tolerated by the
community. Even if this is the case, according to Dickson's C.J.C. judgment in Towne
Cinema Theatres, the material is nevertheless to be considered obscene. As a result of this confusion of
how the criteria operate, Sopinka, J. effectively fuses the two separate
criteria and makes the community standard of tolerance dependent on the
possible harm caused by the material: 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. (page 150) The consequences of this fusion
created by Butler is that where the material cannot be said to cause
harm, by definition it does not exceed the community standard of tolerance. See
footnote 27 27
It may be that the conflation of
the two criteria (harm and community standard of tolerance) in Butler was
influenced by the fact that the criminal prohibition of the material violated
the constitutional right to freedom of expression. If this restriction on
expression, punishable as a criminal offence, is to be justified it must be
based on a strong societal interest. Thus, only the potential harm
caused by the material can be the basis for such a restriction. The community's
intolerance of the expression, where it is based on something other than the
expression's harmfulness (such as its effect on morality or its profound
offensiveness), cannot be a justified basis for restricting this constitutional
right. This reasoning can indeed be found
in Sopinka, J.'s judgment. In discussing the Hicklin test, he states
that the dominant purpose of the criminal prohibition of obscenity was to: advance
a particular conception of morality. Any deviation from such morality was
considered to be inherently undesirable, independently of any harm to
society...I agree with Twaddle J.A. of the Court of Appeal that this particular
objective is no longer defensible in view of the Charter. (page 156) See
footnote 28 28
In this vein, Sopinka, J. states
that the "overriding objective of s.163 is not moral disapprobation but
the avoidance of harm to society" (page 157). In light of the Charter concerns,
it may well have been legitimate to hold that the community standard of
tolerance criteria could not longer be a justification for restricting
expression. But to transform this criteria into the harm criteria has, it is
submitted, created some confusion which has been evident in the context of the
criminal provisions dealing with indecency. See
footnote 29 29
2. Criteria for determining
indecency The Supreme Court of Canada has
recently had occasion to consider the legal meaning of indecency in two cases.
In the first decision, R. v. Tremblay See footnote 30 30
, the Court held that the criteria for
determining whether an act is indecent is based on the community standard of
tolerance test (per Cory, J. at p.115), a test which is "similar to the
one used in obscenity cases". The Court then went on to apply the Butler
version of the community standard of tolerance test, namely "the degree of
harm which could result from public exposure to the impugned material" (page
116), and stated: That
same consideration of the degree of harm which may flow from the questioned
work must also be relevant to the determination of the community standard of
tolerance with respect to acts which are said to be indecent. (page 117) The major difference between the
use of the test in obscenity and indecency cases, as reiterated by the Supreme
Court in Tremblay, is that the circumstances surrounding the act must be
taken into account when applying the test to determine indecency. In this
regard, the court quoted with approval from the Quebec Superior Court decision
in R. v. Pelletier See footnote 31 31
: ...indecency
concerns sexual behaviour or its representation which is neither obscene nor
immoral but inappropriate according to the Canadian standards of tolerance
because of the context in which it takes place. In other words, indecency is
not a function of the behaviour itself but rather of the circumstances in which
it takes place. (page 89) As such, the audience, place and
context are essential elements in the determination of indecency. The facts in Tremblay are
fairly well-known. The charge related to the keeping of a bawdy house for the
purpose of the practice of acts of indecency. At the premises, a client would
select a dancer from pictures shown to him. He would then be taken to a private
room containing a mattress and a chair. The dancer chosen would enter,
undress and perform an erotic dance on the mattress. There was to be absolutely
no touching between the client and the dancer. Small holes in the wall were
located in each room so that the owners could ensure that the "no
touching" rule was respected. For an additional fee the dancer would use a
vibrator. During the dance she would simulate or effect masturbation. The
clients were able to remove their clothes and many clients masturbated while
observing the dance. The Supreme Court held that the
acts that occurred in the rooms were not indecent. This was based on the
following factors:
- according to an expert witness, masturbation is a
common activity engaged in by a large majority of the population and is
regarded as a healthy and acceptable activity by Canadians;
- the dancing was similar to accepted nude dancing that
occurs in many other clubs that are tolerated by both the police and the
public;
- there was no physical contact between the client and
the dancer;
- the sexual activities were conducted behind closed
doors out of the view of the general public (although the premises were a
public place within the meaning of the Criminal Code);
- there was no harm caused by the activities; they took
place between consenting adults who chose to be in that relatively private
location. Given these factors, the Court
held: Thus,
neither the actions of the dancers nor, in the factual circumstances presented
by this case, the acts of masturbation constituted indecent acts. Here, the surrounding
circumstances were such that the acts would be tolerated by the community and
they were therefore not indecent. This result may seem offensive to some. Yet,
it must be remembered that we are not concerned with standards of good taste.
Rather, the question is whether the acts will be tolerated by the community.
(page 125) The next major decision of the
Supreme Court of Canada dealing with indecency is R. v. Mara and East See footnote 32 32
. The case dealt with the criminal
offence of "allowing an indecent performance" (s.167(1)) and
concerned the practice of "lap dancing" taking place at a club in
Toronto. At the trial, there was testimony given by undercover police officers
who had attended the club over a period of several days. There were women who
performed exotic dances on stage. But for a fee, the dancer would perform a
dance at the customer's table, wearing nothing but a long unbuttoned blouse. In
this dance, the dancer would allow contact between the customer and her
breasts. For a larger fee, the dancer would perform a "lap dance"
whereby she would sit on the customer's lap with her back to him allowing her
bare buttocks to come into contact with his groin area. The lap dance also
involved the dancer reaching into the customer's pants and, either apparently
or actually, masturbating him. The customer was allowed to fondle the dancer's
body, and to make contact with parts of her body with his mouth. At trial, the judge held that this
was not indecent, relying in part on the decision in Tremblay. The
Ontario Court of Appeal overturned the decision and, based on the accepted
facts, convicted the accused. On appeal to the Supreme Court of Canada it was
held that the acts were indecent, but the owner and operator could not be
convicted because he lacked the necessary knowledge of the acts being performed
in the club to sustain a conviction. The conviction against the manager was
sustained. In arriving at its conclusion, the
Court confirmed that the appropriate test for indecency is that of the
community standard of tolerance as set out in Towne Cinema Theatres,
modified by Butler: "harm is the principle underlying the notion of
what Canadians would tolerate" (page 551). The key question is whether the
social harm engendered by the performance is such that the Canadian community
would not tolerate the performance taking place: The
relevant social harm to be considered pursuant to s.167 is the attitudinal harm
on those watching the performance as perceived by the community as a whole.
(page 551) The Court found that, since there
was sexual touching between the dancer and the customer, the acts created
attitudinal harm because they presented women as sexual objects to be used by
men: "it is unacceptably degrading to women to permit such uses of their
bodies in the context of a public performance in a tavern" (page 552). The
Court distinguished Tremblay because there was no physical contact in Tremblay
and the acts took place in a private room: "the public nature of the
activity and the physical contact raise a factual context very different from
the previous cases" (page 554).
The facts of the case are set out
in the Introduction to this paper. A great deal of the decision in the Court of
Appeal was taken up with the question of whether an act must have a sexual
context in order to be indecent. This is the key question on which the majority
and dissent disagreed, although both judgments agreed in the result that the
act in question, appearing topless in the streets of the town, was not an
indecent act. The crux of the decision concerns
two findings: the trial judge did not apply the correct test and, in any event,
there was no evidence of harm. As far as the first finding is
concerned, the trial judge held that the act of going topless in the town
exceeded the community's standard of tolerance, because women generally have
not appeared publicly in a topless state, nor would the newspapers reporting on
the event print a picture of the women in a topless state. This, according to
the trial judge, showed what the community standard of tolerance was, namely
that public display of toplessness by a woman would not be tolerated. See
footnote 33 33
In commenting on the trial judge's
application of the community standard of tolerance test, Osborne, J.A. stated: what
the trial judge did was measure the appellant's choice of apparel and conduct
against what the trial judge concluded Guelph women would deem to be
appropriate for themselves. The trial judge seems to me to have applied a test
similar to the test rejected by this court in R. v. Giambalvo. In
my opinion, both the trial judge and the summary conviction appeal court judge
erred in law in applying the wrong test to determine whether the appellant's
conduct was indecent. They used a test of acceptance based upon the trial
judge's assessment of how women chose to act, as opposed to what the contemporary
national community would tolerate. (page 16) However, and what is perhaps more
significant, is that, even if the wrong test was applied, Osborne, J.A. went on
to find that the community standard of tolerance was not exceeded by the act of
toplessness in this case because there was no harm in what was done: ...there
is no evidence of harm that is more than grossly speculative. All that the
trial judge had before him was some evidence indicating specific individuals'
lack of acceptance of the appellant's choice of clothing. There was nothing
degrading or dehumanizing in what the appellant did. The scope of her activity
was limited and was entirely non-commercial. No one who was offended was forced
to continue looking at her. (page 16) See
footnote 34 34
The conclusion reached by the
Court of Appeal on how the community standards test should be applied is, of
course, based on the decisions of Butler and Tremblay as well as
the Ontario Court of Appeal's decision in Mara and East (the Supreme
Court's decision not yet having been made, but nevertheless approving the
Ontario Court of Appeal's decision). In all of these cases, the issue of the
community's standard of tolerance is ultimately a question of the harm caused
by the acts, and more particular whether the acts were degrading and
dehumanizing. As such, the state of the law is now that both indecency and
obscenity are determined by the potential harm that could result from the act
in question. EXPOSURE
OF BODY PARTS AND INDECENCY Even without the recent
development in the way that the community standards test is to be determined,
the issue of when the exposure of body parts constitutes indecency has never
been absolutely clear. It must, of course, be stated at the outset that, by
virtue of s.174(1), the Criminal Code renders complete nudity per se to
be a summary conviction offence. However, by virtue of ss.(3), the consent of
the Attorney General is required to initiate a prosecution. Sometimes cases of
complete nudity have been prosecuted under s.173, and the courts have held that
this is not an inappropriate exercise of prosecutorial discretion. See
footnote 35 35
Nevertheless, when s.173 is used
to prosecute cases of complete nudity, the case law has, with some consistency,
held that mere nudity is not per se indecent; there must be something
over and above this exposure. See
footnote 36 36
Some courts have referred to this
additional element as "moral turpitude" See
footnote 37 37
but it would seem to be ultimately a
function of context: time, place, manner, audience, other surrounding factors. The question of partial nudity
will always be a function of indecency, since s.174(2) defines nudity, for the
purposes of ss.(1) to be a question of whether public decency or order has been
offended. The Ontario Court of Appeal held in R. v. Giambalvo See
footnote 38 38
that the test under ss.(2) is the
community standards test. As such, it would be difficult to
state with any clarity or certainty that the act of toplessness itself is, per
se, indecent. We know, from the response to the Jacob decision that there
are members of the public who are profoundly upset and offended at the idea of
women appearing topless in public places. See
footnote 39 39
Some object to this on the basis of their
religious concerns; others on moral grounds (eg.sexual display, lewd reactions
by men); many referred to the problems of children being exposed to this in
conjunction with an attempt to educate them into having a set of values
expressing modesty and other beliefs inconsistent with a public display of
toplessness. In addition, many of the decisions
relating to indecency (eg. Tremblay, Mara and East) concern charges laid for
conduct in public places where those who were exposed or confronted by the
behaviour were willing observers. No one would find him/herself having to see
the behaviour because, to a large extent, it had to be searched out. The question of what the community
would not tolerate others seeing makes sense in these situations because the
restriction is preventing both the actor and the observer from experiencing the
behaviour. However, in the Jacob case, appearing topless in public on a city
street, involved confronting many unwilling observers with behaviour that they
would profoundly have preferred not to have seen. No one had to search out this
behaviour and therefore could easily have avoided it if it was considered
offensive. On the contrary, children playing on their front lawns were exposed
to it. This, it is submitted, creates a different kind of problem from that
contemplated by the community standards test. The question of what the
community would not tolerate others seeing, does not appear to be the
appropriate criteria in this kind of situation. See
footnote 40 40
There are two broad conclusions
that can be drawn from the above analysis. The first is that indecency is now
to be assessed in the same way as obscenity, in terms of the harm caused by the
act. But there is a legitimate question whether indecency and obscenity should
be treated equivalently for legal purposes. As stated above, indecency relates
to conduct or behaviour whereas obscenity relates to material. There are
differences between acts and expressions and it may be important for the law to
be sensitive to these differences in terms of how it deals with
indecency/conduct and obscenity/expression. If there is to be a legally
recognized contrast between indecency and obscenity, even one that simply sees
them as different gradations along the same scale, there would need to be some
legislative reform that establishes different criteria to be used in
determining whether something is indecent or obscene. The second conclusion is that the
current test for indecency is not easily applicable to the case where those who
are being subjected to the conduct may not tolerate it. If it is recognized
that people have a legitimate interest in being relatively free from having to
confront profoundly offensive behaviour in circumstances where it is reasonable
for them to assume that they will not have to confront such behaviour, then
some legal response may be required to deal with this kind of problem. See
footnote 41 41
It may, however, not be the kind of legal
response for which the criminal law is either appropriate or apposite. THE
FEASIBILITY OF MUNICIPAL REGULATION As mentioned above, it may be more
appropriate for legal means other than the criminal law to deal with the
problem of local concerns over having to confront the public display of women's
breasts in areas where, given the day-to-day activity, one would not ordinarily
expect to be confronted by such behaviour. This requires consideration of the
constitutional (i.e. division of powers) legality of whether a province can
delegate to a municipality the power to regulate standards of dress required in
various public locations within that municipality. The power to legislate in relation
to criminal law is exclusively within the jurisdiction of the federal
Parliament (s.91(27) of the Constitutional Act, 1867). Provincial Legislatures
have power to legislate over the areas of:
- property and civil rights" (s.92(13)), or
- matters of a "merely local and private nature in
the Province" (s.92(16)). In relation to this division of
powers, there are three important points that need to be made:
1. Since the decision by Rand, J. in Margarine Reference
See
footnote 42 42
this power has been understood to relate
to "a body of prohibitions" enacted in relation to a public purpose;
'public purpose' includes: public peace, order, security, health, and morality.
The list is not exhaustive nor is it the case that legislation in relation to
any one of these public purposes necessarily makes the legislation in question
criminal law. See
footnote 43 43
2. The category of morality is not coextensive with the
field of criminal law. In Nova Scotia Board of Censors v. McNeil See footnote 44 44
, the Supreme Court of Canada was asked
to determine the validity of provincial legislation that prevented the film,
Last Tango In Paris, from being shown. In deciding that the legislation was
valid provincial law, rather than criminal law, Ritchie, J. made the following
comment: I
share the opinion expressed in this passage that morality and criminality are
far from coextensive and it follows in my view that legislation which
authorizes the establishment and enforcement of a local standard of morality in
the exhibition of films is not necessarily an invasion of the federal criminal
field. (page 692) See
footnote 45 45
3. The "pith and substance" of legislation
must come within either a federal or provincial head of power. See
footnote 46 46
But the fact that, in pith and substance,
some piece of legislation comes under one jurisdiction's head of legislative
power does not mean that, under another aspect of it, it cannot fall under some
head of power belonging to the other jurisdiction. See
footnote 47 47
Thus, both the federal Parliament and a
provincial legislature (or municipality) could deal with a certain subject
matter, eg. public nudity, and both sets of laws could be valid. Where there is
a direct conflict between the two sets of laws, the federal laws would be
paramount. See
footnote 48 48
However, in the absence of direct
conflict, both sets of laws can coexist. The question then is whether
municipal regulation designating standards of dress (specifically nudity or
partial nudity) can be construed, in pith and substance, as coming under one of
the heads of legislative power belonging to the provincial legislature? It is submitted that a provision
controlling the appearance of nudity or partial nudity on municipal streets,
parks or other public spaces could be framed as being a matter of property and
civil rights (s.92(13)) or as a matter of a merely local and private nature in
the Province (s.92(16)). The purpose of the provision would be to regulate the
use of municipal areas in order to address one or more of the following
concerns: * nuisance * street congestion and disorder * the exposure of children to
behaviour contrary to the values their parents are trying to instill * ensuring the ability of persons
within the locality their right to enjoy their property. All of these objectives have been
found by the courts to be a proper basis for a province or municipality to pass
legislation or by-laws even though the subject-matter may also be construed as
moral in nature or overlaps with some provision of the Criminal Code. Clothing worn by employees in
massage parlours For example, the courts have
upheld provincial legislation that dictates the type or amount of clothing worn
by employees in massage parlours. In Cal Investments Ltd. v. Winnipeg, See
footnote 49 49
the Manitoba Court of Appeal considered a
municipal by-law requiring a person working in a massage parlour to "wear
a non-transparent outer garment from neck to knee". The law was challenged
on the basis that it went further than mere regulation of massage parlours and
in its effect constituted a prohibition of such parlours and intruded upon the
federal legislative power over criminal law. The court relied on the analysis
used in MacNeil (supra) and held that "in pith and substance the by-law in
question was designed to regulate massage parlour trade". To the extent
that it dealt with morality, the court held that it was not legislation with
respect to criminal law and therefore was not invalid. See
footnote 50 50
Similarly, in Re Moffat and City
of Edmonton, See
footnote 51 51
the constitutionality of a by-law which
set a standard of dress for persons engaged in providing a body rub was
challenged. The court relied upon the decisions in Cal Investments and MacNeil
and held that if, city council may deem this to be a regulation or restriction
reasonably necessary to prevent what might be normally a body-rub becoming
something deleterious to health or morals, I am unable to see how this by
itself goes so far as to invade the criminal field. (page 109) Clothing and relationship with
audience The courts have also upheld
provincial or municipal regulations that stipulate the type and amount of
clothing worn by entertainers and the relationship that they can have with the
audience. In Rio Hotel (supra) a challenge was issued against provincial
legislation that authorized conditions being imposed on a liquor licence
specifying the degree of nudity acceptable as well as rules for staging events
presupposing the removal of clothing. It was argued that the Criminal Code
included provisions dealing with nudity and that the licensing requirements
imposed by the Liquor Licensing Board were an infringement of the federal
criminal law power. Writing for a majority of the Supreme Court of Canada,
Dickson, C.J. held that the legislation was a proper exercise of provincial
legislative power because it was related to property and civil rights as well
as matters of a purely local nature. The purpose of the legislation was
to "regulate the forms of entertainment used by the owners of licensed
premises as marketing tools to boost sales of alcohol". Dickson, C,J,
noted that while the provisions overlapped somewhat with the Criminal Code
provisions, there was no direct conflict between the licensing conditions and
the Criminal Code provisions dealing with nudity. Also, no penal consequences
resulted from a breach of the licensing conditions whereas the Criminal Code
provisions were punitive in nature. The provincial and federal provisions were
not inconsistent and could operate concurrently. See
footnote 52 52
Distribution of adult videos The courts have upheld provincial
legislation regulating the distribution of adult videos. In It's Adult Video
Plus Ltd. v. British Columbia (Director of Film Classification), See
footnote 53 53
the British Columbia Supreme Court upheld
a provincial law requiring all adult films to be submitted for classification
before distribution, and to allow only approved films to be distributed. The
court held that the purpose of the law was the regulation of the dissemination
of pornographic films, in order to: * suppress conditions giving rise
to the commissions of crimes; * establish production and quality
controls for the industry within the province; * protect residents, especially
children, from "surreptitious distribution of prohibited materials". Display of erotic publications
except under certain conditions The courts have upheld provincial
legislation regulating the display of erotic publications even going so far as
prohibiting them except under certain conditions. In Information Retailers
Association of Metropolitan Toronto v. Metropolitan Toronto, See
footnote 54 54
a challenge was made against provincial
legislation that authorized municipalities to license and regulate premises where
books or magazines were sold which appeal to "erotic or sexual appetites
or inclinations". The by-law in question required that adult books be
displayed 1.5 metres above the floor, and that only the name of the publication
should be visible. The Ontario Court of Appeal found
the legislation to be within the provincial head of legislative power under
s.92(13) since it authorized the regulation of a permitted business and did not
go so far as to prohibit the business. The principal intent of the legislation
was "to restrict physical and visual access by children to certain
publications, particularly what are known as "adult" or
"skin" magazines". On the issue of morality, the court stated: it
is well established that the presence of a moral element in the purpose does
not of itself render the by-law invalid as an improper exercise of federal
criminal law jurisdiction...The pith and substance of the impugned by-law was
the regulation of a permitted business...Morality is not an independent constitutional
value and may be regulated either by Parliament or a Legislature depending on
the characterization of the legislation as a whole. A by-law aimed at
regulating a trade or business in order to protect children has, in my view, as
its "true object, purpose, nature and character" matters within
provincial legislative authority and is not to be declared invalid simply
because its purpose may extend to moral considerations. (pages 462-463) The court found no conflict
between the provisions of the by-law and the obscenity provisions of the
Criminal Code because the two laws served totally different purposes. Nuisance control and crime
prevention The courts have upheld provincial
legislation controlling the operation of disorderly houses. In Bedard v. Dawson,
See
footnote 55 55
legislation passed by the province of
Quebec was challenged. The legislation gave a right to private citizens to
apply to the court for an injunction to close down a premises because it was
being used as a disorderly house. The Supreme Court of Canada held that the
legislation was valid because the province had the legislative power to
restrain nuisances. Idington, J. stated: [The
province has] the power called in question herein so far as the relevant facts
require. Indeed, the duty to protect neighbouring property owners in such cases
as are involved in this question before us renders the question hardly
arguable. There are many instances of other nuisances which can be better
rectified by local legislation within the power of the legislatures over
property and civil rights then by designating them crimes and leaving them to
be dealt with by Parliament as such. (emphasis added, page 684) Anglin, J. added: I
am of the opinion that this statute in no wise impinges on the domain of the
criminal law but is concerned exclusively with the control and enjoyment of
property and the safeguarding of the community from the consequences of an
illegal and injurious use being made of it - a pure matter of civil right. In
my opinion in enacting the statute now under consideration a legislature
exercises the power which it undoubtedly possesses to provide for the
suppression of a nuisance and the prevention of its recurrence by civil process.
(page 685) See
footnote 56 56
Street control The courts have also upheld
municipal regulations controlling the use of the streets. In A.G. (Can.) and
Dupond v. Montreal, See
footnote 57 57
the Supreme Court of Canada upheld the
validity of a municipal by-law which prohibited the holding of "any
assembly, parade or gathering in the public domain of the City of Montreal for
a time-period of thirty days". Beetz, J. in the majority decision, stated
that the by-law dealt with matters of a local character and was regulatory in
nature. The preventative nature of the by-law, and the fact that it was a
temporary measure were an important part of the finding. However, the court
held that the province had the legislative power to suppress conditions likely
to favour the commission of crime. Of course, not every provincial or
municipal enactment has been accepted as valid by the courts. In a trilogy of
decisions, the Ontario Court of Appeal held municipal by-laws to be invalid
where the by- laws attempted to control the standard of dress of persons
providing service or entertainment in adult establishments (bars, clubs, body
rub parlours). See
footnote 58 58
However, in Rio Hotel, Estey, J. in a
separate concurring judgment, after discussing these cases, stated that:
"In my respectful view, the dispositions in Koumoudouros, Nordee and
Sherwood were in error." (page 677) Indeed, more recently, in the case of
Re Ontario Adult Entertainment Bar Association and Municipality of Metropolitan
Toronto, See
footnote 59 59
the Ontario Court of Appeal followed
Estey, J. in Rio Hotel and held that these three cases were now overruled. In Re Ontario Adult Entertainment,
the court was asked to consider the validity of a municipal by-law that
prohibited close-contact dancing ("lap dancing") in adult
entertainment establishments. The court held the by-law to come properly within
provincial legislative power by addressing health, safety and crime prevention
concerns. Although an ancillary effect of the by-law touched on matters of
morality, the court held, following Rio Hotel: provinces
have the right under the division of powers under the Constitution Act,
1867, to enact regulations in the nature of police or municipal regulation of a
merely local character to preserve in the municipality, peace and public
decency, and to repress drunkenness and disorderly and riotous conduct. (page
167) Finally, the Supreme Court of
Canada's decision in R. v. Westendorp See footnote 60 60
must be mentioned. In that case, a by-law
enacted by the city of Calgary was being challenged. The by-law created an
extensive regulatory scheme relating to the use of city streets. However, one
section dealt with prostitution and it prohibited being on a street for the
purposes of prostitution. The court declared this section of the provision to
be invalid in that it was a colourable attempt by the city to prohibit
prostitution, which was clearly within the domain of criminal law. The court
found the section to be unconnected with the rest of the by-law, and noted that
the nuisance associated with street prostitution was singled out in being
prohibited whereas other equal street nuisances were not even mentioned.
Therefore, it was evident that the city was attempting to prohibit and punish
street prostitution under the guise of its power to control local nuisances,
prevent crime, maintain public order and use of the streets. It should be fairly clear from the
above cases that a municipality can indeed create a by-law that would regulate
the standard of dress controlling nudity or partial nudity from occurring in
various public locations within its streets and parks. But not every by-law
passed by a municipality controlling nudity will be valid. For example: * a
municipality cannot pass a by-law dealing with the subject-matter of the public
appearance of nudity that is in direct conflict with any of the related
provisions of the Criminal Code; See
footnote 61 61
* a
municipality cannot pass a by-law the aim of which is to punish people from
appearing nude in public. What this means is that a
municipality would need to create a fairly well-focused by-law that was clearly
aimed at preventing nuisances, maintaining public order and keeping children
from being exposed to nudity or partial nudity. This kind of by-law would
probably not contain a blanket prohibition on nudity or partial nudity, nor
should it establish an offence for appearing nude or partially nude. If the
by-law regulated standards of dress in certain public areas (eg. public
swimming pools, parks, beaches), especially areas where children would
reasonably be expected to be present it is more akin to matters of property and
civil rights or of a purely local nature than to criminal law. Moreover, if the
regulation gave a power to prevent the person from continuing to be present at
these locations in such a state, rather than creating a punishable offence,
then the by-law would appear "in pith and substance" to be linked to
proper local objectives. It is submitted that such a by-law is not aimed at
punishing indecency (especially where the local standard of indecency is
different from that contained in the Criminal Code) but at controlling
behaviour within the locale that a majority of the members of that community
wish to establish for themselves. This kind of by-law, for example,
might allow a municipal official present at a swimming pool to request someone
not properly dressed to take such steps as would comply with the dress standard
(eg. to ask a topless woman bather to put her top on). If the person refused,
that person could then be asked to leave the swimming pool. At this point, a
refusal to leave may result in the person infringing the provincial trespass
legislation. But the by-law itself would not be aimed at punishing the person;
rather its aim is directed at controlling how the person would be dressed at
that location as a function of legitimate local concerns and objectives. Depending on the municipality and
its local concerns (especially the community's views on standards of dress in
public areas), by-laws could be created that would allow certain areas to be
used where dress standards might be relaxed, "zones of tolerance",
and this could be made clear to members of the public so that no one who did
not wish to confront this activity, or have their children exposed to it, would
need to enter these zones. See
footnote 62 62
It should be clear that the
criminal standard for indecency allows Canadians to prevent other Canadians
from seeing or doing what they would like to in public. This is a strong
control over the actions of others and, as stated above, it may be that, in
order to comply with the Charter, such penal restrictions on actions that
persons willingly want to experience may only be justified on the basis of the harm
it causes. However, local by-laws regulating
standards of dress in certain public areas are designed not to prevent
Canadians from seeing something because other Canadians will not tolerate them
seeing it, but because the members of that community have decided that they
themselves do not want to have to be exposed to this behaviour, or do not want
their children being exposed to it. It goes without saying that the
criminal law is a blunt instrument for dealing with problems of this nature. As
the courts have recognized, this kind of problem is better dealt with by local
regulation. It is submitted that if a municipality, in good faith, attempted to
regulate standards of dress in public areas this would be considered by the
courts as a proper exercise of legislative power belonging to the province. Footnote: 1 1 R.
v. Jacob (1997) 112 C.C.C. (3d) 1. There was a dissenting judgment that did
not disagree on the disposition but only on the legal criteria for a finding of
indecency. The majority did not restrict indecency to sexual conduct, whereas
the dissenting judge did. Footnote: 2 2 (1663)
1 Sid. 168; 82 E.R. 1036 Footnote: 3 3 See
generally: Archbold, Criminal Pleading, Evidence and Practice Volume 2 (London:
Sweet and Maxwell, 1994) at 31-64, and Smith and Hogan, Criminal Law 7th Ed.
1992 (London: Butterworths) at pp.474-476. Footnote: 4 4 R.
v. Thallam (1863) 9 Cox C.C. 388. Footnote: 5 5 R.
v. Mayling [1963] 2 W.L.R. 709. Footnote: 6 6 See
Archbold, supra at 31-65, and Smith and Hogan, Criminal Law, supra. Footnote: 7 7 See
Knuller v. D.P.P. [1973] A.C. 435; 56 Cr.App.R. 633 (H.L.) Footnote: 8 8 (1990)
91 Cr.App.R. 341 (Eng.C.A.) Footnote: 9 9 (1965)
49 Cr.App.R. 175 (Eng.C.A.) at pp.180-181. Footnote: 10 10 Criminal
Code, S.C. 1892, c.29, s.177. Footnote: 11 11 Criminal
Code, S.C. 1953-54, c.51, s.158. The addition of s.171(2) came as a
result of Bill C-15. S.C. 1987, c.24, s.7. Footnote: 12 12 S.C.
1931 c.28, s.2, Criminal Code s.205A. Subsection 2 required the consent of the
Attorney General of the province before a prosecution could be commenced. Footnote: 13 13 S.C.
1953-54, c.51, s.159. Footnote: 14 14 L.R.
3 Q.B. 360 per Cockburn C.J. at 371. Footnote: 15 15 See
R. v. American News Co. (1957) 118 C.C.C. 152 (Ont.C.A.); R. v. National
News Co. (1953) 106 C.C.C. 26 (Ont.C.A.); R. v. Stroll (1951) 100
C.C.C. 121 (Mont.Ct.Sess.Peace). Footnote: 16 16 S.C.
1959, c.41, s.11. Footnote: 17 17 (1962)
132 C.C.C. 161. Footnote: 18 18 See
R. v. Close [1948] V.L.R. 445. Footnote: 19 19 Dominion
News and Gifts v. The Queen [1969] 2 C.C.C. 103 (S.C.C.) affirming [1967] 3
C.C.C. 1 (Man.C.A.). Footnote: 20 20 R.
v. MacMillan Company of Canada (1976) 31 C.C.C. (2d) 286 at 322 (Ont.C.A.);
R. v. Kiverago (1973) 11 C.C.C. (2d) 463 at 464 (Ont.C.A.);R. v.
Goldberg and Reitman (1971) 4 C.C.C. (2d) 187 at 191 (Ont.C.A.). Footnote: 21 21 R.
v. Great West News Ltd. [1970] 4 C.C.C. 307 per Dickson, J.A. at 315. Footnote: 22 22 (1985)
18 C.C.C. (3d) 193. Footnote: 23 23 The
majority of the Court also held that the intended audience was a relevant
factor for consideration in determining the standard of tolerance. Footnote: 24 24 (1992)
70 C.C.C. (3d) 129. Footnote: 25 25 The
Court held that, although s.163 violates the right to freedom of expression,
the section is nevertheless justified on the basis of section one as a
reasonable limit prescribed by law in a free and democratic society. Footnote: 26 26 See
pages 146-147. The use of the word 'necessarily' is crucial because, in Towne
Cinema Theatres, although Dickson, C.J.C. acknowledged that it was empirically
possible that a degrading or dehumanizing depiction may, as a matter of fact,
exceed the standard of tolerance of a community, the two criteria were conceptually
distinct. By using the word necessarily', Sopinka, J. and the cases he cites,
are identifying the two criteria as conceptually equivalent. Footnote: 27 27 This
may be an acceptable result when dealing with obscenity (which, it should be
pointed out, is mostly a form of expression and not conduct). However, because
indecency is, as the English courts have recognized, much lower on the scale of
recognized standards of acceptable behaviour, it is submitted that the current
approach in Canada is problematic because the court, in determining indecency,
is now looking for harm and not directly attempting to gauge community
tolerance. As such, the test of community tolerance for an act considered to be
indecent has been artificially raised. Footnote: 28 28 It
is perhaps worth noting that the Hicklin test - the tendency of the material to
deprave and corrupt- is arguably not just a matter of enforcing morality but
was believed to be necessary to prevent the harmful effects the material would
actually have on the individual in relation to his/her values and the
consequent behaviour. Sopinka, J. himself states that "harm in this context
means that it predisposes persons to act in an antisocial manner...Antisocial
conduct for this purpose is conduct which society formally recognizes as
incompatible with its proper functioning." (pages 150-151) Indeed, even
Sopinka, J. agrees that the notions of moral corruption and harm to society are
not distinct: "It is moral corruption of a certain kind which leads to the
detrimental effect on society." (page 157) Sopinka, J. believes that
Parliament has the right to legislate on the basis of some fundamental
conception of morality for the purposes of safeguarding the values of society
which are integral to a free and democratic society (page 156). Why would moral
corruption not fit into this "fundamental conception"? Footnote: 29 29 It
is worth noting that indecency, for the most part, concerns conduct or
behaviour whereas obscenity relates to some form of expressive material
(written, film, art). Although conduct can be expressive, the interests at stake
in regulating conduct rather than pure expression are quite different and
therefore the basis for a justification of restricting conduct (even if it is
expressive) may be different from what is capable of justifying a restriction
on expressive material that does not take the form of conduct. Footnote: 30 30 (1994)
84 C.C.C. (3d) 97. Footnote: 31 31 (1985)
27 C.C.C. (3d) 77. Footnote: 32 32 (1997)
115 C.C.C. (3d) 539. Footnote: 33 33 (1997)
112 C.C.C. (3d) 1 (Ont.C.A.) per Osborne, J.A. at 15. Footnote: 34 34 In
dissent, Weiler, J.A. agreed that the trial judge had incorrectly applied the
community standards test and that he erred in not considering whether there was
any harm: see page 27. Footnote: 35 35 R.
v. Verette (1978) 40 C.C.C. (2d) 273 S.C.C.; R. v. Bennet (1975) 29
C.C.C. (2d) 403 (B.C.S.C.). Footnote: 36 36 See
R. v. Pickard (1984) Ont.D.Crim.Conv. 6095-07 (Ont.Prov.Ct.); R. v.
Hecker (1980) 58 C.C.C. (2d) 66 (Yuk.T.Ct.); R. v. Balazsy (1980) 54
C.C.C. (2d) 346 (Ont.Prov.Ct.); R. v. Springer (1975) 31 C.R.N.S. 48
(Sask.Dis.Ct.); R. v. Niman (1974) 31 C.R.N.S. 48 (Ont.Prov.Ct.); R. v.
Beaupre (1971) 7 C.C.C. (2d) 320 (B.C.S.C.) Footnote: 37 37 See
Beaupre, supra, and Niman, supra. Footnote: 38 38 (1982)
70 C.C.C. (2d) 324. Footnote: 39 39 It
is worth noting that the members of the public upset and concerned about
toplessness may differ in percentage from community to community. This is a
factor that supports the idea being proposed in this paper which is that the
problem of toplessness is better handled through local regulation rather than
by national law. Footnote: 40 40 It
is worth noting at this point that the English approach, as set out in Mayling
(supra), for indecency is whether the act in question would disgust and annoy
any ordinary members of the public who might be confronted by it. Footnote: 41 41 It
is submitted that the response of the Court of Appeal in Jacob, that anyone who
was offended could simply look away, fails to understand the full import of
what is actually occurring in this kind of situation. Footnote: 42 42 [1949]
S.C.R. 1 at 50, approved by the Privy Council at [1951] A.C. 179. Footnote: 43 43 See
for example the decision in Labatt Breweries v. A.G.Can [1980] 1 S.C.R.
914 where the majority of the Supreme Court of Canada concluded that a
provision of the federal Food and Drug Act (that prohibited the labelling or
advertising of beer as light beer unless the beer complied with a standard
prescribed by Parliament, and breaching the prohibition was a hybrid offence
subject to a fine or 3 year term of imprisonment) was not legislation in
relation to criminal law even though it was in relation to health. Footnote: 44 44 [1978]
2 S.C.R. 662. Footnote: 45 45 In
the later case of Rio Hotel v. Liquor Licence Board [1987] 2 S.C.R. 59;
44 D.L.R. (4th) 663, Estey, J. in a minority concurring opinion, referring to
this aspect of the decision, stated that the decision did not need to be
decided on this basis and that it could perhaps be considered obiter. Footnote: 46 46 See
Lord'sDay Alliance of Canada v. A.G.B.C. [1959] S.C.R. 497 per Kerwin, C.J.C.
at 503; Churchill Falls (labrador) Cor. v. A.G. Nfld. [1984] . Footnote: 47 47 This
is known as the "aspect doctrine". See Hodge v. The Queen (1883)
9 App.Cas. (P.C.) 117 at 130; and Multiple Access Ltd. v. McCutcheon [1982] 2
S.C.R. 161. Footnote: 48 48 See
Rio Hotel, supra at pages 666-667. Footnote: 49 49 (1978)
84 D.L.R. (3d) 699 (Man.C.A.). Footnote: 50 50 ibid,
at pages 704-705. Footnote: 51 51 (1979)
99 D.L.R. (3d) 101 (Alta.Q.B.). Footnote: 52 52 See
also Re Sharlmark Hotels Ltd. v. Metropolitan Toronto (1981) 32 O.R.
(2d) 129. Footnote: 53 53 (1991)
81 D.L.R. (4th) 436 (B.C.S.C.). Footnote: 54 54 (1985)
52 O.R. (2d) 449 (Ont.C.A.). Footnote: 55 55 [1923]
S.C.R. 681 (S.C.C.). Footnote: 56 56 More
recently, the jurisdiction of a provincial Attorney General to restrain conduct
constituting a public nuisance was upheld by the Ontario Court of Justice (General
Division) in Ontario Attorney General v. Dieleman (1994) 20 O.R. (3d)
229; 117 D.L.R. (4th) 449. The case involved picketing on public streets and
sidewalks near abortion clinics, hospitals, doctors' offices and doctors'
residences. Adams, J. found that the Attorney General had standing to seek an
injunction restraining this activity because of the interest in restraining
public nuisances which materially affect the reasonable comfort and convenience
of life of those local citizens who have to deal with it. Footnote: 57 57 [1978]
2 S.C.R. 770 (S.C.C.). Footnote: 58 58 See
Koumoudouros v. Metropolitan Toronto (1985) 52 O.R. (2d) 442 (Ont.C.A.);
Sherwood Park Restaurant Inc. v, Markham (1984) 48 O.R. (2d) 449
(Ont.C.A.); Nordee Investments Ltd. v. Burlington (1984) 48 O.R. (2d)
123 (Ont.C.A.). Footnote: 59 59 (1997)
35 O.R. (3d) 161 (Ont.C.A.); leave to appeal to the Supreme Court of Canada
refused. Footnote: 60 60 [1983]
1 S.C.R. 43; 2 C.C.C. (3d) 330. Footnote: 61 61 The
fact that the by-law would prohibit some behaviour that is allowed by the
Criminal Code does not constitute a direct conflict. Although it is hard to
assess this in the abstract, generally speaking the question of whether it is
possible to comply with both provisions, or whether one provision requires some
act that is prohibited by the other, are the key elements of a direct conflict.
Footnote: 62 62 An
obvious example would be specific beaches or beach sites where topless or even
nude bathing would be permitted. A clear sign at the perimeter of the beach
would note that persons beyond this point may not be wearing any clothes.
Anyone offended at this does not have to attend at this beach. March 1999
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