Thursday, December 22, 2005

Supreme Court of Canada: group sex and bawdy houses are okay. But is this good precedent?

While everyone has been cheering the latest Supreme Court ruling that guarantees a constitutional right to private group sex, I stand still. Puzzled.

Recognizing that Trudeau's "the state has no business in the bedrooms of the nation" is anathema to Canadians, the Court has ruled accordingly. Reading the case makes it even more clear to me that the majority focused more on precedent rather than the black and white text of the law. Indeed, there is absolutely no analysis in the majority opinion of the part of the Criminal Code being broken, s. 210(d). Instead, the majority revels in playing the philosopher king, asking: is a bawdy house indecent? does it cause harm? does our Canadian tolerance extent to bawdy houses? Here is the relevant section in the criminal code:
Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Case closed. Yet, the judges babble about decency and harm.

The real big issue, in my opinion, is the continuing neo-natural law jurisprudence of this Court. This neo-natural law jurispudence evidently appears to focus more on good sounding slogans than law. "Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," says McLachlin. Essentially, the Court has baptized the harm principle.

THE SIGNIFICANCE OF THIS RULING IS THUS: Logically, these sexual decisions based on consent may logically lead into economic decisions between people based on consent. Look at McLachlin's formulae to test whether or not state interference is unjust or not. I have been saying for years that this type of sexual liberation in society is really bad news for government. Not only do they lose their right to legislate for the public good (morality). But they may also lose their economic right to intrude on its citizens.

For example, I cannot set up a gambling operation in my house. I need a license from the state. But why would I need to under the logic of these sexual liberation cases? If consent without harm=permissable without state interference, the government requirement of a license ought to be nulled unconstitutional and void. Heck, the concept of "taxes" is an implicit interference upon two or more private consenting individuals.

Since a situation where the Court rules taxes unconstitutional based on the firewall of consent is absurd, so must this decision be. And thus, the signficance of this case is not a drawback of public morality, but of a dangerous road of precedent being developed.

6 comments:

Dave T. said...

I think you misunderstand the ruling and miss the point. The ruling addresses the question of whether the sex club in the case is in fact in a common bawdy-house at all. In effect, the court ruled that section 210 did not apply because the sex club was bawdy-house.

A common bawdy-house is defined in the Criminal Code as a place where prostitution or "indecent acts" occur. Since there was no prostitution in the clubs in the case, the question becomes "what is an indecent act?" This question is important because the term "indecent" is not defined anywhere in the Criminal Code.

That's what the ruling is about. You say "case closed" as if there's nothing more to ask. But the point that the accused argued is that they were *not* in a common bawdy-house because there were no "indecent acts" occuring there.

The question is not "is a bawdy-house indecent?" By the Criminal Code's definition, a bawdy-house *is* indecent. The question is "was the activity going on in these clubs indecent?" If it was, then they are bawdy-houses. If the activity was not, then they are not bawdy-houses. The Court found in its ruling that the activity was not indecent. Therefore, because there were no "indecent acts" occuring there, the club was not a bawdy-house and section 210 does not apply.

You also take the quote that "Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society" out of context. The Court was speaking only about the consensual conduct in this case in the context of whether or not it was "indecent" and whether it could be said to harm society. The court ruled that this conduct did not harm the participants or society, and that it was therefore not indecent.

The Court did not rule that "state interference" was not justifiable. What it ruled was that section 210 did not apply because the acts were not indecent.

In other words, the court ruled only ruled on the definition of decency and did not strike down the bawdy-house laws. These laws still stand and can still be used to close down brothels, just as one example. It also would be perfectly allowable for the government to tax, regulate, or license these kinds of sex clubs just as it does gambling operations. Taxes have nothing whatsoever to do with indecency as defined in this ruling.

If Parliament wants, it can choose to clearly define the term "indecent" in the Criminal code. That would override the ruling in this case.

Dave T. said...

My apologies. In the first paragraph I wrote "In effect, the court ruled that section 210 did not apply because the sex club was bawdy-house."

What I meant, of course, was "In effect, the court ruled that section 210 did not apply because the sex club was NOT Abawdy-house."

Jonathan said...

Well, I think we can agree that a bawdy house is a bawdy house when there is a property where commercial activity involving sex (ie. prostitution or indecent acts) takes place. I hope you could agree with that. Now let us look at the facts.

To me, the facts are quite simple. The establishment accused of being a bawdy house was commercial. The moment they charged a "membership fee" to enter their establishment to facilitate sex, it became a bawdy house. It doesn't matter if the people having the sex is profiting off it. See this section of the Code:

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,

(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Under your definition of a bawdy house, if we can establish that prostitution occurs in the bawdy house, then it is indeed a bawdy house and thus criminally liable. I agree that the case looked mainly at whether or not it was indecent. However, I believe that since it was facilitating commercial sex, it was prostitution.

As the dissent noted: "The evidence shows that numerous efforts were made to advertise for new customers. In addition, sexual acts could be performed in the establishment only after a mandatory commercial transaction, that is, the payment of an entrance fee."

I believe that this commercial nature was nullified by the majority in an undue manner. I believe this qualifies it as prostitution. Since I would define prostution as sex for pay, and certainly people cannot get sex without paying at this establishment, I feel that this establishment is facilitating prostitution, which qualifies it as a bawdy house.

_____


I suppose my opinion on gambling houses flows not just from this ruling, but a multitude of rulings. I am speaking in mind, however, of the type of logic that undermines Lawrence v. Texas in the US. That ruling struck down sodomy laws prohibiting sodomy. I suppose I may be wrong on whether this will affect Canadian jurisprudence, since the case I had in mind was clearly a US example. It is a point taken. I do remember there being other points in Canadian jurisprudence where this consent principle was taken too far, although for the time being the examples escape me.

Would you say Lawrence v. Texas was rightly decided?

Dave T. said...

Bastarache and LeBel argue, as do you, that because money changes hands, that prostitution is involved. Bastarache and leBel write:

Sexual acts could be performed on the third level of the establishment only after a mandatory commercial transaction between the participants and the owner of the establishment, since everyone had to pay a fee to become a member. The participants essentially purchased sexual services provided by other participants.

The majority opinion disagrees with it. What's being purchased is not sex, it's access to the club. The people having sex with each other do not pay each other for sex, therefore no prostitution takes place. For the majority, Maclachlan makes this argument:

No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that l’Orage is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. Members do not pay a fee and check consent at the door; the membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. The case proceeded on the uncontested premise that all participation was on a voluntary and equal basis.

Think of this analogy: suppose a group of people want to have a sex party. Everyone in the group contributes money, and the owner of a night club charges the group to rent that night club for a night. The group of people close the night club to the public, forbidding anyone else to enter, and enage in a group sex party. Does that make the sex that takes place prostitution simply because the people in the group paid money to rent the space where the sex takes place? The majority in this ruling argue, righting in my opinion, that it does not.

I can't really say anything Lawrence v. Texas since I don't know enough about US Law to make an intelligent comment.

Len said...

Have a very Merry Christmas!!!

Anonymous said...

While this narrow decision may have related simply to those who attend such public orgies merely as wholly indiscriminate and egalitarian participants, the facts of life indicate that such an assumption would be widely untrue.

It is obvious, in the result of this narrow conclusion that prostitutes would easily be enabled to showcase and barter their wares in such an environment, and that no form of self-regulation could be effective without continuous oversight of a club's management. Without such control and oversight, the natural tendency of such clubs to become defacto bawdy houses is undeniable.

Prostitution is a crime with two victims. Simply excusing those who do not barter their sexual favors in no way excuses those who would most likely use such a club (and/or be used by it's management)to do so in one form or another. This ruling thus effectively legalizes victimization by lewd public solicitation otherwise seemingly contrary to the Criminal Code, as long as those harmed in semi-public also express a willingness not percieve it as such.

This notion of two different types of public places, simply cannot fly lacking some sort of a contingent legal redefinition of immorality or the crime of Prostitution. Here the court, rather than clarifying the law, has merely established a new gray area on a patch of formerly unshaded territory.