Supreme court ruling

[Fluffy]

The SCC ruled today on a case in Quebec regarding swingers clubs. I know this is not an exact fit with the current crackdown on MPs but perhaps the way the court has defined indecent acts has a bearing. Thoughts from our legal eagles in the audience?

http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc080.wpd.html

 

[Pompal 09.]

Legal Recap:

A bawdy house is defined as a place used for Indecent acts or Prostitution.

Criminal indecency or obscenity must rest on "actual harm or a significant risk of harm to individuals or society".

Prostitution is sex for money. The above requirement of actual harm or significant risk also applies to Prostitution, since harm is a minimal Constitutional requirement for all criminal law. That harm, though is presumed to exist in all Criminal Code offences, and hence need not, execpt in Indecency cases, be proven by the Crown.

At first blush, this case is not relevent to MP's. There was no Prostitution at the swing club, only alleged criminal indeceny, which is harder to establish due to the fact that the 'harm test' must be proven by the Crown. Indecent acts alone are not inherently harmful, so the law requires that the Crown prove the Indecent Act also contains harm or a significant risk of harm to the public, which in the SCC case, the Crown failed to establish.


Critical anaylsis:

The case is only relevent to MP's if it could provide an impetus to challenging the validity of Prostitution on Constitutional grounds. Recall, All crimes in order to be valid criminal law must be rooted in real, identifiable harm to persons or the public.

The SCC found that the 'swing club' did not cause actual harm. If the SCC did, one day declare that MP service does not cause "actual harm or a significant risk of harm to individuals or society", as Constitutionally required for criminal law, then the 'Prostitution' element of the bawdy house definition would be overly-broad.

If so, the court could 'read in' a 'Body-rub parlour' exemption into the definition of Prostitution, or send the matter back to Parliament to rewrite the law in accordance with Constitutional guidelines.

 

[Pompal 09.]

"Facially"?

 

[Pompal 09.]

Please excuse me if this is a silly question.

But what if a MP actually charged a fee to join, like a swinger club. So instead of door fee plus tip, you would just pay the MP. For example you would go to Star Studio and pay $100 entrance fee. Would this be the same thing?

 

[Olive Crayon]

No. At least not if you also were paying the individual MPA for the specific session—various subtrefuges to appear otherwise, like calling it a tip or donation aside.

The majority found that the 'club' aspect you're thinking of did make the conduct private rather than public, while the dissenting judges said it was insufficiently private. All the judges noted that there was no exchange of money for sex and thus no prostitution, but the dissenters felt that making a business out of providing premises for swinging—performing sex acts the community would not tolerate, harmful or not—was enough to make the place a bawdy house.

The question yet to be decided is the other half of the BH definition: If you can set up premises such that acts which would be criminally indecent if done in public are private enough to be acceptable, then is there a similar way to set up premises so the otherwise legal acts of prostitution committed therein don't make criminals of the premises-providers and found-ins?

The definition of prositution is already pretty objective, while "indecency" is a subjective concept. As they said, the Supremes can expect many more struggles with it. But considering a BH as a place kept for purposes of prostitution, it seems to me that they'd have to chuck that whole definition of BH; there's little in the definition to re-define as there was in "indecency".

There may be room for the defence to argue that proving similar harm should be a requirement for police and Crowns criminal law sanctions are applied to the 'innocent' act of landlording an address where legal commercial acts take place. Trouble is, to accept that defence the court would have to chuck out a statute not just redefine a word in it, a law specifically enacted by Parliament, one that goes back centuries to when "bawdy' was common speech.

They don't really do that ("judge made law!" redneck nonsense notwithstanding) unless they can show that law is contrary to the higher law of the Charter or Constitution (although before their decision they and we might have failed to see it that way). Sadly, there's no Charter provision that says we shall be free from Parliament defining criminal offences anyway Parliament chooses. Wish there was; this should be a licensing issue for provincial and municipal authorities.

 

[myfav1]

I have mixed feelings about the case. First, it indicates that the Supreme Court is willing to take a dramatically new and liberal view of "morals offences". Their analysis focusses in whether any one was harmed by the acts in question, either by being disrespected or coerced into sex or by being a member of the public who was confronted with acts they would not want to witness. As neither of these factors was present, the SCC dismissed the charges. This is an encouraging new departure in that the court creates a "public harm" test and deliberately departs from prior morals-driven judicial analyses. So it leaves the door open to argue that escorts or MP's in very discreet unmarked and secluded locations would not be indecent in any way.

OTOH the decision specifically draws a distinction between the situation at hand - which was found not illegal - and a situation where sex was paid for. So it looks like their Lordships/ Ladyships are not yet ready to give the OK to prostitution. I'll have to read the entire case. So far, I've just read the headnote. I'll be able to comment in more detail in a day or so.

 

[knucles]

Old Jones, maybe this is the way to nail the BH definition. It's already clear that not all exchanges of sexual stimulation for $ are illegal. Lapdances are now undoubtedly legal and yet they involve contact with a naked woman. One could argue that the exchange of $ would have to be for an indecent act and that if the act is not "indecent", as defined by the SCC, then no act of prositution has occurred.

 

[boom10]

I know the legal ramifications have yet to be proven in court but this has GOT to be good news for our hobby eventually. It may take a while, but by putting the onus on harm rather than community standards we've got to be the winners. It's harder to point to the harm if noone's being hurt (as long as noone's being exploited) whereas it's easy to say we're outside the boundaries of community standards.

 

[joshrules001]

I wish someone would come up with "the who the hell cares what two consenting adults are doing' clause in the constitution, now thats a party I would vote for

 

[Elsabe]

The news articles I've read indicate that this decision has no effect on the fact that the bawdy-house law still applies to places used for prostitution. The wording of the law and the definition in the Criminal Code are pretty clear and don't leave much room for creative interpretations by the courts. The actual law itself (or the definition of a common bawdy-house) would have to be changed, which would have to be done by the federal government -- and that sure won't be happening any time in the near future.

But if the SCC reasoning behind the swingers club decision was applied to the current laws in the Criminal Code, I doubt they would pass the test. Independent outcall escorts can already operate without violating the Criminal Code, so being a prostitute (or the client of a prostitutes) isn't necessarily illegal. And I don't think that simply adding the element of exchanging money to sex behind closed doors between consenting adults would be deemed to be harmful, although some would likely disagree. If anything, the laws could be judged to be actually causing harm by requiring escorts to work in less safe circumstances than if they were legally allowed to work at incalls or brothels.

 

[reighning]

Found this on another board. Thought it looked interesting.


"It'll be interesting to see where the case takes us. As we know, indecency is based on a 'harm' test, but Prostitution is not. The problem with prostitution is that it is defined in such wide terms. Its simply, sexual services for cash payment.

But, its not paying for sex that is illegal, its prostitution that is illegal. Be careful not to confuse the 2. The prostitution laws work indirectly. They prohibit sex for cash as a means of prohibiting prostitution.

But, to make matters even trickier, recall that Prostitution is legal in Canada. So what is Prohibited? Living on the avails, Bawdy Houses, and Street Soliciting. Or put another way, pimping, 'whore' houses, and Street Hookers.

So its interersting, Prostitution has never been prohibited. Prostitution related offencs are; but only some of them. Outcalls were left untouched. The only reason that MP's got prohibited was that they got 'caught' under the 'whore' house provision. Municipalities realized this, and tried to ameliorate the situation by cloaking them as licenced massage spas. Cities realized that Prostitution laws were overly-broad, and generally allowed their MP's to operate.

So how does one attack the prostitution laws? Overbreadth. A prohibition on MP's might be easier to attack than incalls because 'MP service' is further from the 'core' of Prostitution. It ought to be argued that the prohibition on sexual services for money in a 'place' (bawdy house) is overly-broad.

The Supreme court could narrow the Prostitution aspect of the bawdy-house provision by importing the same 'harm' test for indecency into the definition of Prostitution. The Crown ought to be required to show 'public harm' in a particular Prostitution case, as it must do so for indeceny.

To challenge that harm ought to be proven with Prostitution is to assume that harm is present, which is not always the case."

 

[Pompal 09.]

That's about it in a nutshell. I finally got around to reading the case this week. About the only things I can add are these:

1. The definition of "bawdy house" involves the concept of "habitual use". THerefore a swingers' club that involves pros OCCASIONALLY getting paid for sex may well duck under the legal radar, if the main traffic in the club is non-paid swinger sex.

2. The 7 judge majority wrote probably the most badly reasoned decision in legal history, in technical legal terms. The only real conclusion of value I drew from it was that most of the SCC judges felt the law should be removed from morality-type offences, as long as these events are non-public and totally consensual. I suspect they feel the same way about prostitution offences. The problem is that there is a very conservative line of recent cases in the Ontario Court of Appeal which defines the law re "prostitution" for this province and it will take a major effort of judicial willpower and creative avoidance at the SCC to reason its way around this recent caselaw.

OTOH the SCC had the power to over-rule the Ont CA whenever it pleases and the SCC seems to be very progressive and liberal on these issues. It may be worth a shot at getting a case up there with this panel of judges.

 

[-Mitch]

The problem is that the courts do have room to make decisions regarding indecency but not much when it comes to prostitution.

Prostitution has many court decisions and is fairly well understood. As long as the bawdy house rules include prostitution I doubt very much anyone will be able to get around it or a court decision will open up the gates.

Judges do not seem to have a problem understanding money for sex and all of the variations people keep coming up with to try and get around the rules.

There needs to be a change in the laws not new court decisions when it comes to prostitution.

 

[Lady Discordia]

An additional comment on the case from a civil libertarian lawyer...


http://osgoode.yorku.ca/media2.nsf/83303ffe5af03ed585256ae6005379c9/a6018f7e4544e888852570eb0070306f

'Joseph Arvay, a Vancouver lawyer who represents the British Columbia Civil Liberties Association, said the ruling could have long-term implications for groups ranging from gay-bathhouse users to prostitutes to marijuana smokers.

"It is very likely that gay bathhouses across the country are now lawful, and will no longer be subject to harassment and prosecution by the authorities," he said. The ruling may also prompt arguments that the "harm-based" approach should be applied to other issues such as prostitution and marijuana use, he said.'

 

[Bad Example]

A couple of interesting points in the last post. First, the SCC decision was obviously written with gays in mind and is 1 of a series of pro-gay decisions by the major courts in the country. Although the judges don't specifically mention gay bath-houses, you can guess those issues were at the back of their minds.

The "harm-based" test will undoubtedly be raised over and over by imaginative lawyers. But the fact is, "harm-based" is NOT a facet of our criminal law and has only been applied this 1 time, as far as I know. No prior judicial decision in the cannabis area or the prostitution area has so much as mentioned a "harm-based" analysis. The law in both those areas has developed in a much different way. Unfortunately there are many decisions defining prostitution in a very traditional moralistic way.

OTOH Canada is changing. We now have a society that winks at MP's and escort agencies to the point where municipalities licence them - albeit in a cynical and half-hearted way. Lap dancing is legal, with a grey area as to what is "over the line". And many European countries have legalized prositution. The law will change at some point in a liberal direction. It's a ? of how exactly and how long we will have to wait.