Canadians can have group sex in clubs:
top court
Wed Dec 21, 2005 10:39 AM ET
By David Ljunggren
OTTAWA (Reuters) - Group sex between consenting adults is neither
prostitution nor a threat to society, the Supreme Court of Canada
ruled on Wednesday, dismissing arguments that the sometimes raucous
activities of so-called "swingers" clubs were dangerous.
In a ruling that radically changes the way Canadian courts
determine what poses a threat to the population, the court threw
out the conviction of a Montreal man who ran a club where members
could have group sex in a private room behind locked doors.
"Consensual conduct behind code-locked doors can hardly be supposed
to jeopardize a society as vigorous and tolerant as Canadian
society," said the opinion of the seven-to-two majority, written by
Chief Justice Beverley McLachlin.
The decision does not affect existing laws against prostitution
because no money changed hands between the adults having sex.
The court was reviewing an appeal by Jean-Paul Labaye, who ran the
L'Orage (Thunderstorm) club. He had been convicted of running a
"bawdy house" -- defined as a place where prostitution or acts of
public indecency could take place.
Lawyers for Labaye and James Kouri, the owner of another swingers'
club in Montreal, had argued that consensual sex between groups of
adults behind closed doors was neither indecent or a risk to
society.
The Supreme Court judges agreed.
"Criminal indecency or obscenity must rest on actual harm or a
significant risk of harm to individuals or society. The Crown
failed to establish this essential element of the offence. The
Crown's case must therefore fail," wrote McLachlin.
In indecency cases, Canadian courts have traditionally probed
whether the acts in question "breached the rules of conduct
necessary for the proper functioning of society". The Supreme Court
ruled that from now on, judges should pay more attention to whether
society would be harmed.
The judges said that just because most Canadians might disapprove
of swingers' clubs, this did not necessarily mean the
establishments were socially dangerous.
"Attitudes in themselves are not crimes, however deviant they may
be or disgusting they may appear," the judges said, noting that no
one had been pressured to have sex or had paid for sex in either of
the cases.
"The autonomy and liberty of members of the public was not affected
by unwanted confrontation with the sexual activity in question only
those already disposed to this sort of sexual activity were allowed
to participate and watch," they said.