Review of the Law of Indecency and Nudity 1999

Footnote: 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  (1663) 1 Sid. 168; 82 E.R. 1036

Footnote: 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   R. v. Thallam (1863) 9 Cox C.C. 388.

Footnote: 5   R. v. Mayling [1963] 2 W.L.R. 709.

Footnote: 6   See Archbold, supra at 31-65, and Smith and Hogan, Criminal Law, supra.

Footnote: 7   See Knuller v. D.P.P. [1973] A.C. 435; 56 Cr.App.R. 633 (H.L.)

Footnote: 8   (1990) 91 Cr.App.R. 341 (Eng.C.A.)

Footnote: 9   (1965) 49 Cr.App.R. 175 (Eng.C.A.) at pp.180-181.

Footnote: 10   Criminal Code, S.C. 1892, c.29, s.177.

Footnote: 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    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   S.C. 1953-54, c.51, s.159.

Footnote: 14   L.R. 3 Q.B. 360 per Cockburn C.J. at 371.

Footnote: 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   S.C. 1959, c.41, s.11.

Footnote: 17   (1962) 132 C.C.C. 161.

Footnote: 18    See R. v. Close [1948] V.L.R. 445.

Footnote: 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    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  R. v. Great West News Ltd. [1970] 4 C.C.C. 307 per Dickson, J.A. at 315.

Footnote: 22   (1985) 18 C.C.C. (3d) 193.

Footnote: 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    (1992) 70 C.C.C. (3d) 129.

Footnote: 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    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   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   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   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    (1994) 84 C.C.C. (3d) 97.

Footnote: 31    (1985) 27 C.C.C. (3d) 77.

Footnote: 32    (1997) 115 C.C.C. (3d) 539.

Footnote: 33    (1997) 112 C.C.C. (3d) 1 (Ont.C.A.) per Osborne, J.A. at 15.

Footnote: 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   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   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   See Beaupre, supra, and Niman, supra.

Footnote: 38   (1982) 70 C.C.C. (2d) 324.

Footnote: 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  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   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  [1949] S.C.R. 1 at 50, approved by the Privy Council at [1951] A.C. 179.

Footnote: 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   [1978] 2 S.C.R. 662.

Footnote: 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   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   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   See Rio Hotel, supra at pages 666-667.

Footnote: 49   (1978) 84 D.L.R. (3d) 699 (Man.C.A.).

Footnote: 50    ibid, at pages 704-705.

Footnote: 51    (1979) 99 D.L.R. (3d) 101 (Alta.Q.B.).

Footnote: 52    See also Re Sharlmark Hotels Ltd. v. Metropolitan Toronto (1981) 32 O.R. (2d) 129.

Footnote: 53    (1991) 81 D.L.R. (4th) 436 (B.C.S.C.).

Footnote: 54    (1985) 52 O.R. (2d) 449 (Ont.C.A.).

Footnote: 55     [1923] S.C.R. 681 (S.C.C.).

Footnote: 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    [1978] 2 S.C.R. 770 (S.C.C.).

Footnote: 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   (1997) 35 O.R. (3d) 161 (Ont.C.A.); leave to appeal to the Supreme Court of Canada refused.

Footnote: 60    [1983] 1 S.C.R. 43; 2 C.C.C. (3d) 330.

Footnote: 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    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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