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THE SUPREME COURT SWINGS AND KNOCKS OUT DECENCY
Christmas is always a dangerous time for Canadians
because it's usually just before then that Chief Justice McLachlin
and her revolutionary crew of judges sitting on the Supreme
Court choose to hand down their blockbuster decisions to change
the established law and instead, impose their own personal
revisions. The activist judges assume that no one is paying
attention at that time, so their decisions will not get too
much attention and be forgotten by January. The judges did
this in December 2002, when Chief Justice McLachlin wrote
the majority decision in Chamberlain vs Surrey School Board
in which the BC School Act was rewritten by the court to state
that all schools must teach homosexual "tolerance";
the court also instructed School Boards to ignore the religious
views of parents who object to such a program. The BC School
Act did not provide that tolerance of homosexuality be taught,
but this new requirement was provided on the sole inspiration
of the majority of the Supreme Court of Canada. Chief Justice
McLachlin, re-wrote another law on December 22, 2005 in Jean
Paul Labaye vs the Queen, the "swingers" case
where she and her colleagues concluded that nothing is indecent
unless it "causes a substantial risk of harm incompatible
with the proper functioning of society".
This conclusion opens the gates to all sorts of public behavior
(or more accurately misbehavior) and material that most Canadians
would find intolerable. This is because the Court's new definition
of indecency is difficult, if not impossible, to prove and
is frankly unworkable. Possibly, this was the main objective
of choosing such a standard, i.e., to make Canada a very liberal
country with no restraints on sexual behaviour or material.
At least the two dissenting judges Mr. Justice LeBel (Quebec)
and Mr. Justice Bastarache (New Brusnwick) stated in their
judgment at paragraph 105 that the philosophical underpinning
of the majority's harmed-based approach was found in the liberal
theories of John Stuart Mill's book "On Liberty and Considerations
on Representative Governments" in which he argued that
the only purpose for which state power can be rightfully exercised
over the community is to prevent harm to others. Whoever
said that judges ignore the law and impose their own philosophical
views in their legal opinions was absolutely right.
The Facts
This case arose when a swingers' sex club
in Montreal was charged, under Section 210 of the Criminal
Code, with operating a common bawdy house, i.e., a place where
alleged "indecent acts" occurred. The club was located
in a commercial building. Advertisements encouraging the public
to become members appeared regularly, the owners granted interviews
to magazines and TV hosts to attract new members, and brochures
were distributed to the general public. The first floor was
occupied by a bar where dancing took place, the second, was
a salon with private rooms for sexual activity but with cameras
installed for the participants and others to observe the sexual
acts. The apartment on the third floor of the building was
not to be lived in, but was a large loft-style room with no
private spaces. There was no kitchen, plumbing, cupboards
or electric outlets. Eight mattresses were strewn about on
the floor for the purpose of public sex acts. There was a
constant movement of people from one level of the establishment
to the other.
Any adult person interested in the group sexual
activities promoted by this sex club could become a member,
unless, according to the evidence, he or she was "disrespectful"
or did not share the philosophy of the club and its members.
Few applicants were refused membership. Over 800 people had
access to this swingers' club, including its third level,
where the sexual acts at issue took place. Interviews with
prospective members consisted primarily in answering the questions
of those wishing to enter the club. It was a mere formality
that could not reasonably be intended to limit the public's
access to the club. Moreover, every member had the right to
bring guests, who did not have to be interviewed.
The type of partner swapping that occurred
in the establishment involved the widest range of practices,
including acts of penetration, fellatio and masturbation performed
simultaneously or in turn by several men with a single woman.
Since consent to this sexual activity was given by the individuals,
such acts could be performed by anyone 14 years and over (14
years is the age of consent to sexual activity in Canada).
Therefore by this decision, the Court has sent a strong open
invitation to international sex traders and pedophiles to
come to Canada to participate in unrestricted sex with those
14 years of age and older.
In reaching her conclusion that the determination
of indecency must depend upon "harm" being proved
beyond a reasonable doubt, Madame Justice McLachlin dismissed
concerns that promiscuous sex can lead to an increase in sexually
transmitted diseases (STDs and AIDS). She airily declared
that this was not a concern as there is no link between promiscuous
sex and these medical problems. One wonders in what dream
world these judges exist.
This new approach to determine indecency completely
swept away the former test for its determination which was
that the community standard of tolerance, reflecting the values
of the entire community, should be applied. That is, the test
for indecency that has always been applied before this bombshell
decision of the Supreme Court was based on a social consensus
among Canadians as to what is acceptable in terms of sexual
practices.
The lower courts in Quebec had applied this
former test to this case and found social harm in the fact
that sexual exchanges took place in the presence of others
and that the actions were degrading and dehumanizing, calculated
to induce anti-social behaviour in its disregard for moral
values and raised the risk of sexually transmitted diseases.
This decision, to legalize group sex clubs
by the majority of the judges on the Supreme Court of Canada,
clearly shook and deeply upset, the two dissenting judges,
Mr. Justice LeBel and Mr. Justice Bastarache. They wrote a
powerful dissent to the majority's new approach to determining
indecency.
The dissenting judges accurately stated in
paragraph 98 of the judgment:
In principle, we consider the change
to the legal order proposed by the majority of the courts,
to be inappropriate, particularly because no valid justification
is given for departing from the existing test. We are convinced
that this new approach strips off all relevance the social
values that the Canadian community as a whole believes should
be protected. (Emphasis ours)
The two dissenting judges went on to state,
in paragraph 103:
In our opinion, the test adopted by the
majority introduces a concept of tolerance that does not
seem to be justifiable according to any principle whatsoever
… Social morality, which is inherent in indecency offences
and is expressed through the application of the standard
of tolerance, must still be allowed to play a role in all
situations where it is relevant. Otherwise, the social values
that the Canadian community as a whole considers worth protecting
would be stripped of any relevance. (Emphasis ours)
In short, the rewriting of the indecency law
has opened up a Pandora's box of problems for Canada and has
resulted in the views of ordinary Canadians on this sensitive
issue of indecency being no longer considered of consequence.
Judges' Decisions Have No Legal Basis
What is also very clear, as a result of this
decision and the decision in the Surrey School Board case,
is that Madame Justice McLachlin and her colleagues need no
legal basis on which to base their decisions. They just make
up propositions as they go along. For example, in the Surrey
School Board case, the BC School Act specifically gives jurisdiction
to the School Board to make decisions about which books are
to be used in the classroom. However, Madame Justice McLachlin
obviously did not like this and instead stated that her court
was entitled to interfere in the School Board's decision because
the issue was a human rights matter in which the court had
"particular expertise", and that even though it
was never stated anywhere in the BC statute, the legislators
"intended" a "relatively robust level of court
supervision over the issue." That's a revelation and
a brand new concept that came from nowhere. It seems that
this radical interpretation of this Act comes solely from
McLachlin's head.
Similarly, in the sex swingers' club case, the re-defining
by McLachlin and colleagues of the indecency law was based
on nothing more than the judges' personal desire to make the
law more to their liking. As stated by dissenting Justice
LeBel at paragraph 103, the Court's new standard or test for
indecency was "not justifiable by any principle whatsoever".
The conclusion to be drawn from all this is
that this court can and will do anything it feels like and
it simply doesn't care what the public thinks. They are the
"Supremes", after all.
No one is happier about this decision, by the way, than the
homosexual activists because it means that their bathhouses,
where promiscuous sexual behaviour is constantly carried out
without restraint, are no longer illegal in Canada. The activists
had been planning to bring a legal challenge of the prosecution
of their bathhouses, but they no longer have to do so as the
Supreme Court of Canada has conveniently changed the law for
them in this regard.
The only positive point that can be said about
this incredible decision is that it does not involve any Charter
rights, i.e. constitutional rights, so that Parliament can,
if it so wishes, overturn the decision by a vote in Parliament
in order to return the test for indecency to community standards
of tolerance.
Prime Minister Harper Will Re-visit Decision
It is significant during the leaders debate
on January 9, 2006 that Conservative leader, Stephen Harper,
was the only party leader to comment on the Supreme Court's
"swingers" decision even though the moderator had
opened up the topic for discussion. Mr. Harper stated that
he recognized that many Canadians were unhappy with the ruling
and stated that his government would revisit the issue.
We can only hope that a Conservative government
will make this change as one of its first orders of business.
An amendment to the Criminal Code to change the libertine
approach to indecency imposed on us by a very liberal court
must take place.
Canadians must make it absolutely clear that
they will not tolerate the law of indecency as re-written
by the absurd Supreme Court of Canada.
Please write to:
Right Hon. Stephen J. Harper
Office of the Prime Minister
Langevin Building
80 Wellington Street
Ottawa, Ontario K1A 0A2
Minister of Justice
Department of Justice
East Memorial Building
4th Floor, 284 Wellington St.
Ottawa, ON K1A 0H8
Your MP
House of Commons
Parliament Buildings
Ottawa, ON K1A 0A6
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