Review of the Law of Indecency and Nudity 1999


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.14
This was the test used in Canada 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.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. Brodie17 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;19
  • a national standard; See footnote 20 20
  • one where judges are entitled to judge for themselves, without expert evidence, when this standard has been exceeded. 21
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.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) 23
Finally, the Supreme Court of Canada reached its definitive decision in R. v. Butler.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.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. 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)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.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. Tremblay30, 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. Pelletier31:
  • ...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 East32. 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).

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