OK in privacy of home? (supreme court)

[brioche]

I heard this on CBC. D'you think this has any bearing on BDSM in the privacy of one's home? Or d'you think the anti-social attitudes part refers to BDSM?


Swingers clubs not harmful to society: top court
Last updated Dec 21 2005 02:52 PM EST
CBC News


Clubs that allow group sex and partner swapping do not harm Canadian society and should not be considered criminal, the Supreme Court of Canada ruled Wednesday.

The high court, which was ruling on two Quebec cases, said Canadian standards can tolerate the activities, even when they are done amid spectators.


The judges, in a 7-2 ruling, said the test for indecency is the harm it causes, and not simply community standards.

The ruling says, for example, there was no evidence of anti-social attitudes toward women or men, no one was pressured to have sex, no one paid for sex and nobody was treated as a sexual object.

The cases involved two swingers clubs in Montreal that allowed sex acts that included swapping.

One case involved James Kouri, owner of a club called Coeur a Corps.

He was convicted by a lower court on two counts of keeping a common bawdy house and fined $7,500.

YOUR SPACE: Letters on the Supreme Court ruling

The other case involved Jean-Paul Labaye who ran a members-only club called L'Orage.

He was convicted of keeping a bawdy house and fined $2,500.

At the Court of Appeal, however, the cases took different turns. Labaye's conviction was upheld while Kouri's conviction was overturned. Now the Supreme Court has given a favourable ruling in both cases.

 

[John Doe]

Standards for laws regarding sex are quite often too vague for my taste. I'd have to see the exact language on this one though.

 

[brioche]

Standards for laws regarding sex are quite often too vague for my taste. I'd have to see the exact language on this one though.

Well, it hasn't been entered on the Supreme Court's website yet, so I had to take what I could find.
Plus I knew CBC hadit because I listen to it every day and heard it there, though I was a little more interested in driving at the time.

 

[Miss Diva]

Here is another article. To me the whole paragragh about consenting adults is the heart of this situation. Everyone knew and no one was harmed. And it was won by a very wide margin. We have very liberal judges in Canada.

(Hopefully these judges will not be so liberal with Karla Homolka, the killer of two teenager girls. She got only 12 years for ratting on her then husband. She can now go as she pleases without telling the police and she lives in my backyard, sort of. The public defender will go to the supreme court of canada to get that stuipid ruling reversed.)

BTW: I am from Montreal. I know a couple who frequented these clubs. One really enjoyed the whole act of performing in public and another did not like, but agreed with people's freedom of choice.

Me, I never been to either of these places.

====================


The Supreme Court of Canada swung in favour of two Montreal nightclubs yesterday, ruling that they were not bawdy houses because the group sex going on inside did not constitute indecent behaviour.

In a watershed 7-2 ruling that shifts how the courts define indecent behaviour, Canada's top court legalized swingers clubs and the orgies and partner-swapping that take place inside them.

Consenting adults are free to do just about whatever they want behind the closed doors of a commercial establishment as long as nobody is harmed and it is not open to the general public.

The ruling, written by Chief Justice Beverley McLachlin, said acts must be shown to be harmful to the point where they "interfere with the proper functioning of society" before they can be labelled indecent.

"Grounding criminal indecency in harm represents an important advance in this difficult area of law."

Robert La Haye, lawyer for Jean-Paul Labaye, owner of the L'Orage swingers club, one of the establishments cited in the court's decision, said the court has completely cleared his client.

"This judgment confirms the possibility to exercise this lifestyle for those people who want to practise this lifestyle, even if the establishment is a commercial establishment where people convene and practise swapping or swinging, even orgies and gang bangs."

However, the two dissenting justices - Michel Bastarache and Louis Lebel - were sharply critical of the court's ruling, describing the new test for indecency as a departure from past precedent.

"It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency," they wrote in their dissent.

Yesterday's Supreme Court ruling, which goes to the heart of what kinds of sexual activity can be tolerated in Canada and under what conditions, centres on the activities of two Montreal bars that catered to patrons who wanted to participate in sexual acts with different partners.

At Labaye's club, L'Orage, a membership fee and an interview would get you through the front door and up to the third floor, where couples and singles exchanged partners and participated in sex acts.

At the now-defunct Coeur a Corps club on Pie IX Blvd., owned by James Kouri, $6 per couple would get you on to the dance floor, where a translucent black curtain would come down every half hour and as many as 80 people would participate in or watch sexual acts.

L'Orage lost in municipal court in 1999 and the Quebec Court of Appeal in 2004. In the case of Coeur a Corps, the initial municipal court conviction was overturned by the appeals court in 2004. Yesterday, the Supreme Court ruled in favour of both clubs, saying group sex is not indecent as long as no harm is done.

In the past, the criterion the courts have used to determine whether something was indecent or not was the community standards test - whether the actions in question would be accepted by the local community.

In yesterday's ruling, however, community standards take a back seat and the primary test becomes whether anybody is harmed by the activity.

In the ruling, McLachlin sets out a new test for harm when it comes to sexual indecency for lower courts to consider when they rule on the question. In considering whether something is harmful, the courts have to look at whether it is "conduct that society formally recognizes as incompatible with its proper functioning."

Courts must consider what Canadian society as a whole thinks - not the opinions of a particular person, community or religion.

McLachlin outlined three types of harm, although she was also quick to point out that it is an area of the law that is evolving.

"Harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct."

"Harm to society by predisposing others to anti-social conduct."

"Harm to individuals participating in the conduct."

For example, subjecting others to sexual acts in public could be harmful, she explained.

"The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond."

Nor is everything permissible as long as it is behind closed doors, she added. Courts must always be on the lookout for victimization.

Speaking to reporters minutes after the ruling, L'Orage owner Labaye said he and his Florida investors are already planning a new, more luxurious club with such features as whirlpool tubs and an indoor pool.

Labaye said the new facility will be needed to allow him to compete against the other swingers clubs he is convinced will open in the wake of the ruling.

Meanwhile, he will continue to operate a more discreet version of the L'Orage club on Ste. Catherine St. E. It has about 2,000 regular customers who pay about $20 each for membership cards, and another 8,000 occasional visitors.

Labaye estimates there are currently about 15 true swingers clubs operating across Canada - about four or five of them in Montreal.

 

[brioche]

Here is another article. To me the whole paragragh about consenting adults is the heart of this situation. Everyone knew and no one was harmed. And it was won by a very wide margin. We have very liberal judges in Canada.

(Hopefully these judges will not be so liberal with Karla Homolka, the killer of two teenager girls. She got only 12 years for ratting on her then husband. She can now go as she pleases without telling the police and she lives in my backyard, sort of. The public defender will go to the supreme court of canada to get that stuipid ruling reversed.)

Consenting adults are free to do just about whatever they want behind the closed doors of a commercial establishment as long as nobody is harmed and it is not open to the general public.

The ruling, written by Chief Justice Beverley McLachlin, said acts must be shown to be harmful to the point where they "interfere with the proper functioning of society" before they can be labelled indecent.

"Grounding criminal indecency in harm represents an important advance in this difficult area of law."

Yesterday, the Supreme Court ruled in favour of both clubs, saying group sex is not indecent as long as no harm is done.

In the past, the criterion the courts have used to determine whether something was indecent or not was the community standards test - whether the actions in question would be accepted by the local community.

In yesterday's ruling, however, community standards take a back seat and the primary test becomes whether anybody is harmed by the activity.

In the ruling, McLachlin sets out a new test for harm when it comes to sexual indecency for lower courts to consider when they rule on the question. In considering whether something is harmful, the courts have to look at whether it is "conduct that society formally recognizes as incompatible with its proper functioning."

McLachlin outlined three types of harm, although she was also quick to point out that it is an area of the law that is evolving.

"Harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct."

"Harm to society by predisposing others to anti-social conduct."

"Harm to individuals participating in the conduct."

For example, subjecting others to sexual acts in public could be harmful, she explained.

"The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond."

Nor is everything permissible as long as it is behind closed doors, she added. Courts must always be on the lookout for victimization.

Ditto on Homolka. My parents know the Mahaffys - in fact, Leslie and I used to sit in the same playpen when they went curling. They both worked at my Dad's work for a time, but I don't think her mom does anymore. Not sure on her dad.

It's the issue of harm and victimization that makes me wonder if this would not apply to BDSM situations.
I dunno.

 

[Miss Diva]

Here is an article about swingers clubs in Montreal

--------------------



On a recent night out on the town, Michel and Chantal Delbecchi left their suburban Montreal home and drove to the L'Orage Club in the city's east end, where they had sex with a couple they had never met before.

The Delbecchis, husband and wife since 1978, are "echangistes," French for "swingers," who for the past 21 years have been visiting clubs like L'Orage (Thunderstorm) to have consensual sex in a group with one or more other people.

For future outings, they will no longer have to fear police will raid the club and arrest them for being in a "bawdy house," a place where prostitution or acts of public indecency take place.

In a landmark decision on Dec, 21, the Supreme Court of Canada lifted a ban on swingers' clubs, ruling that group sex among consenting adults is neither prostitution nor a threat to society.

The ruling sparked outrage, largely in English-speaking parts of Canada, where critics said it would erode limits on indecency or obscenity, encourage prostitution and even contribute to the corruption of minors.

In the mainly French-speaking and predominantly Catholic province of Quebec, however, the decision caused barely a ripple of adverse reaction. Newspaper editorialists fumed in Toronto, but largely yawned in Montreal.

Swingers across Canada cheered the ruling, especially those in Quebec, where adherents go to clubs not only to meet others like them, but also to have sex on the premises.

"It might make it easier for others interested in swinging to take the next step and visit a club," said Michel, 48, huddled next to Chantal, 43, on a sofa at the dimly lit L'Orage.

Michel, who works at an outlet of warehouse retailer Costco, and Chantal, on leave from her job at a school bus operator, said most swingers are not comfortable in the public spotlight.

"We have a few friends who were afraid to come out to a club because they were worried about how a raid might affect their work or family situation," said Chantal.

For L'Orage club owner Jean-Paul Labaye, the court ruling is vindication after a seven-year court battle that began with a 1998 police raid in which he and 40 of his patrons were arrested for being in a bawdy house.

"Everyone was shocked that we would be treated like bandits," said Labaye. "I vowed to defend myself and their cause if that was their desire and that is what I did."

GANG BANG TUESDAYS

Labaye, a portly and jovial 46-year-old native of France, said swingers celebrated the Supreme Court victory with a late-night party at L'Orage.

In an interview the next day at the club, temporarily housed at a venue which features "gang bang" Tuesday afternoons, Labaye apologized for not being able to show a reporter and photographer the upstairs rooms where groups have sex because the housekeeping service had not yet cleaned them.

The club is housed in an elegant but aging two-story house on a busy street. The ground floor has mismatched sofas and chairs, scant lighting and framed photographs on the walls depicting scenes of mild sexual bondage.

The club has no license to sell alcoholic beverages, but sports a small bar that offers coffee and caffeine-loaded soft drinks.

Labaye hopes a group of Florida investors will help him move into swankier digs, which in addition to the requisite private rooms will have something resembling a refined cigar lounge.

Club rules will be the same -- no illicit drugs or alcohol abuse, and when it comes to propositions for sex, a reply of no means no.

In the meantime, the swinger soirees will continue at L'Orage and at least two dozen similar clubs in Quebec, including one in Gatineau, just opposite the Ottawa River from the imposing stone hulk of the Supreme Court building.

Labaye and the Delbecchis, who have three adult sons, are preparing for important changes in their personal lives.

Labaye plans to marry his girlfriend in Paris in May.

As for Michel and Chantal, a 25-year-old woman has become their mutual lover and all three plan to move in together early next year. Despite that new relationship, the Delbecchis expect to continue exchanging sex partners in Quebec clubs.

Said Michel: "At the club, we have sex with people. At home, we make love."

 

[AngelicAssassin]

And here lies the problem with Puritanical Roots

Consenting adults are free to do just about whatever they want behind the closed doors of a commercial establishment as long as nobody is harmed and it is not open to the general public.

Pity your Southern neighbors can't get a clue.

Where BDSM activities will have an issue lies in the vague language of "as long as nobody is harmed."

 

[brioche]

Pity your Southern neighbors can't get a clue.

Where BDSM activities will have an issue lies in the vague language of "as long as nobody is harmed."

Which I did say earlier.

The summary of R. v. Khouri is up: here.
In R. v. LeBaye, the trial was overturned and a new trial was ordered because the two branch requirement (see next post) had not been met. Here.

And if those don't work, the recent judgements page has them in various forms other than HTML, but you have to scan down and find 'em. They're about 6 or 7 down.

Hmm...


In light of the comments made in the companion case R. v. Labaye, 2005 SCC 80, the conduct at issue in this case did not constitute criminal indecency. First, the evidence does not establish a significant risk of harm to the autonomy and liberty of members of the public. The Crown presented no evidence of anyone witnessing this conduct against his or her will, or of anyone entering the establishment not knowing what to expect. The control mechanisms at the door of the bar, put in context, were adequate to restrict access to people informed about the nature of the place and willing to observe or participate in the activities taking place therein. The apparent failure to ask the investigating officers if they were a liberated couple is insufficient to displace the evidence that the practice was to ask each new couple if they were liberated. Second, there is no evidence of inducing anti‑social attitudes through demeaning, abusive or humiliating treatment of any individual or group. No one was pressured into sex, was paid for sex, or was treated as a mere object for the sexual gratification of others. Finally, there is no suggestion of physical or psychological harm to the participants. The health risk from engaging in unprotected sexual activities is conceptually and causally unrelated to indecency and cannot be an independent basis for a finding of criminal indecency. [11‑23]

 

[brioche]

However, reading on, I found this excerpt:

The present appeals require an elaboration of the structure of the inquiry in finding criminal indecency. Based on the guidelines emerging from R. v. Butler, [1992] 1 S.C.R. 452, the analysis should proceed in two steps. Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:

1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:

(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or

(b) predisposing others to anti-social behaviour; or

(c) physically or psychologically harming persons involved in the conduct, and

2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.


I would not say that the "harm" that BDSM causes is incompatible with the proper functioning of society.

It appears to be a two step definition for indecency.

Any lawyers care to opine about this?