Swinging…its legal in Canada!

CTV.ca News Staff Updated: Wed. Dec. 21 2005 11:32 PM ET
Canada's top court says clubs that feature group sex and partner-swapping are perfectly legal.
In its 7-2 decision released Wednesday, the Supreme Court of Canada said, because consensual sexual activity in a private club poses no threat to society, it shouldn't be considered criminal.
The ruling sets a single standard, after lower courts went in opposite directions on two similar cases involving a pair of so-called 'swinger clubs' in Montreal.
In one case, the owner of a singles club was convicted on two counts of keeping a common bawdy house and fined a total of $7,500.
James Kouri's "Coeur a Corps" featured a dance floor around which a black curtain would swing every half hour. People hidden behind the drapery could then take part in or watch sex acts.
In the other case, Jean-Paul Labaye, the owner of the members-only "liberated couples" club L'Orage was also convicted of keeping a bawdy house and fined $2,500.
Members of Labaye's club could enter a locked room where they could participate in or watch any kind of sex act.
"It's a commercial establishment where people reconvene and practice swapping or swinging, even orgy gang-bangs," said Labaye's lawyer, Robert La Haye.
"It does not contaminate society. It does not hurt, it does not do any harm to society and to the public in general."
While Kouri's conviction was overturned by the Quebec court of appeal, Labaye's was upheld. Because a judge dissented in each of those decisions, they both wound up in front of the Supreme Court.
Under the Criminal Code, a "bawdy house" is defined as a place used or frequented for prostitution or "for the purpose of acts of indecency."
Because there was no money paid for the sex acts at the heart of the two cases, the prostitution issue was moot -- leaving the case to be decided in terms of indecency.
The definition of indecency is typically measured against what ordinary Canadians will tolerate.
But in their ruling Wednesday, the Supreme Court judges said the test for indecency should not simply be whether an activity violates a "social consensus" of community standards, but the actual harm it causes.
"Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," Chief Justice Beverley McLachlin wrote in the majority decision.
Brian Rushfeldt, Executive Director of the Canada Family Action Coalition, said Wednesday's ruling should become an election issue.
"I'd like to hear politicians address the fact that we have a Supreme Court, seven judges, literally imposing a whole new moral standard on all Canadians while we've got politicians out there talking about whether they should use a notwithstanding clause," Rushfeldt said.
"Perhaps this is a case where the notwithstanding clause should be imposed to let politicians or parliament make some decision on this because it affects every Canadian, not just the swingers.
Laurie Arron, the Advocacy Director for EGALE a gay rights group, disagreed with Rushfeldt's interpretation of the Supreme Court's decision. Arron said the ruling was not a charter case that struck down a law.
"All they've done is interpret the meaning of indecency and that's something that's never been defined in the criminal code."
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