So the Harm Principle applies to swinging but not to pot, this burns!

Tjhis must be especially hard for DML




cbc.ca

Swingers clubs don't harm society, top court rules

Last Updated Wed, 21 Dec 2005 13:55:08 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.


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

The cases involve two swingers clubs in Montreal that allowed sex acts, including 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.

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.

But if we let people fuck each other, next they're going to be having group sex with poodles and frogs! What message are we sending to children????

R. v. Kouri, 2005 SCC 81

Text of the decision: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc081.wpd.html

This might have implications for cafes, which could now become medication locations and be charter protected with this decsison. Every club and cafe should have an MMAR cardholder on staff anyway.

This ruling just opens up more grey areas. Remember, while prostitution is legal, communications for the purpose is not. Similarly, medical marijuana is legal, recreational is not.

Interesting decision, and one I think might help us in the end.

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Canadians can have group sex in clubs: top court
Wed Dec 21, 2005 12:43 PM EST

By David Ljunggren

OTTAWA (Reuters) - Group sex among consenting adults is neither prostitution nor a threat to society, the Supreme Court of Canada ruled on Wednesday as it lifted a ban on so-called "swingers" clubs.

In a ruling that radically changes the way courts determine what poses a threat to the population, the top 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 laws against prostitution because no money changed hands among 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 in 1999 of running a "bawdy house" -- defined as a place where prostitution or acts of public indecency took place.

Labaye -- who is still running L'Orage despite his earlier conviction -- said he was relieved, and would now go ahead with a new venture with backing from a group of Florida investors.

"We hope clients will be more calm. This will probably lead the way to a good future," he told reporters, saying he was looking at adding a Jacuzzi and a swimming pool.

Labaye said he had about 2,000 regular clients who paid around C$20 ($17) a year for a membership card.

Lawyers for Labaye and the owner of another swingers' club in Montreal argued that consensual sex among 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 offense. (Its) case must therefore fail," McLachlin wrote.

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 actively harmed.

This seemed to ensure there could be no repeat of Labaye's original conviction for causing "social harm" by allowing degrading and dehumanizing group sex to take place.

The judges said that just because most Canadians might disapprove of swingers' clubs, this did not necessarily mean the establishments were socially dangerous.

"The causal link between images of sexuality and anti-social behavior cannot be assumed. 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 the cases the court considered.

"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.

They also dismissed the idea -- raised during Labaye's original trial -- that group sex was dangerous because it could result in the spread of sexually transmitted diseases.

"Sex that is not indecent can transmit disease while indecent sex might not," they ruled.

($1=$1.17 Canadian)

This case is not, exactly, an application of the harm principle to swingers in the same way that DML (and others) argued the harm principle should be applied to cannabis.

The swinging cases (and you should read R. v. Labaye for the detailed analysis of the harm issue) are about whether or not these clubs fall into the definition of "indecency" as that offence is set out in the Criminal Code.

DML challenged the inclusion of cannabis offences in the Code itself. The swingers, by contrast, were not saying that the law prohibiting indecency is unconstitutuional. They just don't think that operating a swinger's club falls within that law. It may seem like a fine point but it is an essential distinction that very much changes the nature of the case. This case is not a Charter challenge. The Court was not asked to apply the harm principle.

Instead, the Court was tasked with explaining what harm means within the context of indecency. It ruled that harm, in that context, meant:

Quote:

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Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of 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. Each of these types of harm is grounded in values recognized by our Constitution and similar fundamental laws. The list is not closed; other types of harm may be shown in the future to meet the standards for criminality established by Butler. But thus far, these are the types of harm recognized by the cases.

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R v Labaye at paragraph 36.

I applaud the decision (though it reinforces the Butler obscenity standards which I think are not so good) but unfortunately I don't think it provides the cannabis culture with too much in the way of legal ammunition.

Basically, it's the same fight for more individuals rights and less state intervention in the private domain.

Swingers have been fighting for years. Actually, not regular swingers but swingers club owners.

Indecency, as a victimless crime, shares many common points with pot prohibition. That is why, from my opinion, this decision is a victory and could be of use in matters of proof (re: the harm principle).

The defense brought up the same argument: studies show that the Canadian society is ready to tolerate that others Canadians swing, in semi-public places, as long as it's between consenting adults and that there's no money involved between the multiple partners.

The Crown wasn't able to demonstrate that there was a social harm in allowing the practice.

So swinging doesn't cause harm within the context of indecency.

At least they cannot now say that pot is indecent by virtue of the harm it causes.( I think)


From the laymans point of view ( mine) I can't see why the Supremes didn't throw this back to the politicians (isn't that what they did with pot?)

Throw back pot to parliament but not swinging! I suppose there is a rational legal explanation but on an emotional level I feel there is an inequality in the administration of justice

My conscience is shocked! (and my faith in the justice system is lessened)

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Maybe the Supremes throw it back to politicians because the Legislator and the elected make the law and not the judges

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I bought into the unconstitutionality of harmless pot avtivity.

I'm no legal beagle and don't know about Butler and Mara.

I am heartened by the swingers victory and agree , as far as I understand, with the decision.

I would like the state to withdraw from areas of our lives where it doesn't belong. prostitution and swingers and abortion are a few examples of rationality.

The contradiction I see, and this is where my respect is lessened, is on recreational drugs. looking through my laymens goggles, I see a strong equivalence in the case for the state withdrawing from mimally harmless (drug) activity.

I know I am preaching to the choir, I am just explaining why the courts' withdrawl from the pot issue, and throwing the ball back to the politicains bugs me.

Quote:

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This decision is a complete reverse of anterior positions like Butler and Mara with regards to «social harm» done by anything related to the sex industry

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could you give me a simple explanation of this.