Two recent decisions from the Supreme Court of Canada, related to the Criminal Code offence of “keeping a common bawdy house”, are important markers along the road to moral and legal relativism. The use of the archaic term “bawdy house” should be an early indication as to how an “enlightened” court might view this criminal activity. ‘Bawdy house’, while normally thought of as a house of prostitution, is defined in the Criminal Code as “a place kept, occupied, or resorted to “by one or more persons for the purpose of prostitution or the practice of acts of indecency”. These cases raise in stark terms the issue of whether there really is any such thing as decency left in Canadian culture. Certainly, the Courts have now concluded that religious values have no place in that debate.
The two cases involved similar facts, and were decided by the Court on December 21, 2005 (R. v. Labaye and R. v. Khouri, the full text of the decisions can be found at www.lexum.umontreal.ca/csc-scc). There were two “swinger” clubs in Quebec that offered group sex to members and guests who paid a fee. The club owners were charged and convicted of the offence. The trial judge in the Labaye case “concluded that the sexual practices on these facts fell below the Canadian community standard of tolerance” and “was indecent … because it was degrading and dehumanizing, was calculated to induce anti-social behaviour in its disregard for moral values, and raised the risk of sexually transmitted diseases”. The Court of Appeal in Quebec agreed with the trial judge and said the “activities at issue were prejudicial to society because of the health risks involved and the propagation of a degrading and dehumanizing view of sexuality”. But a majority (7 – 2) of the Supreme Court of Canada disagreed.
After concluding that, “Defining indecency … is a notoriously difficult enterprise”, the Court went on to say, “Indecency has two meanings, one moral and one legal. Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community. But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.” In the end, the Court concludes that it is “harm” that determines whether something is indecent.
So what is harmful to society? The Court itself asks, “what harms are sought to be curtailed by targeting indecent conduct?” Religious or moral views have no place in the debate as to decency. As the Court said, “The claim that particular sexual conduct violates particular religious rules or values does not” constitute harm that society formally recognizes as incompatible with its proper functioning. The question is what values Canadian society has formally recognized? The Court answered its own question here by saying there are three types of harm that can constitute indecency: “(1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct.” Bad taste, moral views and even the views of the majority do not count when it comes to decency. It appears that our society does not view orgies as a harm to be guarded against.
The two dissenting judges strongly protested the demise of societal views as a basis for determining decency. They said that the harm-based test was “neither desirable nor workable… [and] treats harm as the basis of indecency rather than as a criterion for determining the community’s level of tolerance”. They concluded that Canadian society would not “tolerate the performance, in a commercial establishment to which the public has easy access, of group sexual activities”. But would it?
While there are merits to the Court’s decision in these cases (after all, what decency test would consider activities as contrary to societal values), the death of decency has been pronounced by our highest Court. Despite the words of the dissenting judges, the stage is clearly set for decency becoming a dinosaur whose passing is bemoaned by only a few amid the satisfaction-seeking society we inhabit.
This article was written by Robert G. Kuhn, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn & Company. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.