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LexView 56.0 - Swingers Clubs

From the Archived "LexView" Series

April 28, 2006

This decision, by appearing to adopt John Stuart Mill's harm principle as a prerequisite for the criminalization of conduct, may signal that the Court now views so-called "victimless crimes", such as polygamy, possession of pornography, and certain personal drug offences, as inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. On a narrower reading, however, the decision may simply reflect the Court's determination that consenting adults can engage in relatively private sex free of criminal liability. Even if the Court's ruling is read as limited to sex between consenting adults, uncertainty will haunt police, prosecutors and lower courts until the Court revisits the issue. The decision raises questions about the extent to which Parliament can use the criminal law to promote a social environment relatively free from powerful inducements to vice.

R. v. Labaye
Supreme Court of Canada 2005 SCC 80
Date of Decision: December 21, 2005
Date of Publication: April 28, 2006

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Community standard of tolerance, harm, indecency, public place, law and morals.

Summary of Facts:

The accused operated a club in Montreal that permitted couples and single people to meet for group sex, a practice known as "swinging". Only members and their guests were admitted. Members paid an annual membership fee but no money was exchanged for sexual acts.

The sexual activities took place in a separate part of the club's premises described as an "apartment". It had two access doors, one marked "private" and the other locked with a numeric access code given to members. On several occasions observed by police, a single woman engaged in sex with several men simultaneously while other men watched.

The accused was charged with keeping a common bawdy-house for the practice of acts of indecency under s. 210 of the Criminal Code. "Common bawdy-house" is defined as "a place that is. . . resorted to by one or more persons for the . . . the practice of acts of indecency"; and "public place" "includes any place to which the public have access as of right or by invitation, express or implied." "Indecency" is not, however, defined by the Code, but by judge-made law.

The majority noted that prospective members were interviewed to ensure that they were aware of the nature of the activities of the club and to exclude those who did not approve of swinging. The minority noted that: the club was located in a commercial building and was heavily advertised; the "apartment" was not a residence; the interview of prospective members consisted primarily in answering their questions and was a "mere formality"; and guests were not interviewed or warned.

Significant Issues:

This decision, by appearing to adopt John Stuart Mill's harm principle as a prerequisite for the criminalization of conduct, may signal that the Court now views so-called "victimless crimes", such as polygamy, possession of pornography, and certain personal drug offences, as inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. On a narrower reading, however, the decision may simply reflect the Court's determination that consenting adults can engage in relatively private sex free of criminal liability. Even if the Court's ruling is read as limited to sex between consenting adults, uncertainty will haunt police, prosecutors and lower courts until the Court revisits the issue. The decision raises questions about the extent to which Parliament can use the criminal law to promote a social environment relatively free from powerful inducements to vice.

Decision and The Court's Reasons:

The Supreme Court set aside the accused's conviction. The majority prescribed a new test:

In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met. The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming persons involved in the conduct. The categories of harm capable of satisfying the first branch of the inquiry are not closed. The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. This two-branch test must be applied objectively and on the basis of evidence.

The majority held that since participation in the sexual activities was on a voluntary and equal basis, there was no significant risk of harm to individuals or to society. Individuals would not be predisposed to anti-social acts or attitudes by participating or witnessing the activities, and there was no evidence of physical or psychological harm to them. There was no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society, given that it was consensual conduct and behind closed doors.

The two dissenting judges concluded that the acts were indecent and that the accused's establishment was a common bawdy-house. On the ground that "social morality" is a valid basis for criminalizing certain conduct, the minority rejected reliance on the existence of harm as the key component of the crime and strongly criticized the new approach to indecency as too demanding. While recognizing that harm can be a key component in criminalizing certain conduct, the minority argued that a test based solely on harm is unsubstantiated by case law, as well as plagued by serious practical and theoretical shortcomings.

Majority Reasons

Chief Justice McLachlin writing for herself and six other judges, begins with a review of the history of criminal indecency, noting that the concept is "firmly anchored in societal rather than purely private moral concerns," holding that the Court's concern is with legal and not moral indecency.

The majority argues that the judge-made test for indecency has evolved from one largely based on subjective considerations to one ostensibly using objective criteria based on harm, so that citizens, police and the courts can have a clear idea of which acts are prohibited. The community standards test, which the Court formerly used to define indecency, is not coherent and must be replaced, in part because it depends on a fictional and subjective concept of "community": "In a diverse, pluralistic society whose members hold divergent views, who is the "community"? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct at issue?"

The majority is troubled by the apparent subjectivity of the community standards test, which it saw as tending to work as a proxy for the personal views of expert witnesses, judges and jurors.

The majority asks: "what harms are sought to be curtailed by targeting indecent conduct?", and answers that it must be "conduct which society formally recognizes as incompatible with its proper functioning", meaning harm must be grounded in norms which society "has recognized in its Constitution or similar fundamental laws."

Three kinds of harm

The majority holds that there are three types of harm that will be capable of supporting a finding of indecency. First is the harm associated with loss of autonomy and liberty through public confrontation with unacceptable and inappropriate conduct. People should not be forced to significantly change their usual conduct to avoid being exposed to certain "in-your-face indecency" sexual conduct and material. The manner, place and audience of the act alleged to be indecent is relevant, but the Code definition of "public place" might apply to too many places.

The second harm is that of predisposing others to anti-social acts or attitudes. This sense of harm goes beyond explicit invitations or exhortations to commit anti-social acts, to embrace "attitudinal harm", including "conduct or material that perpetuates negative and demeaning images of humanity [or] targeted groups, [which] may violate formally recognized societal norms, like the equality and dignity of all human beings, which is protected by the Charter and similar fundamental laws such as the provincial human rights codes."

But respect for individual liberty requires proof beyond vague generalizations. Causal links cannot be assumed: "What is required is proof of links, first between the sexual conduct at issue and the formation of negative attitudes, and second between those attitudes and real risk of anti-social behaviour."

The third kind of harm is physical or psychological harm to participating individuals, which must be demonstrated with rigour. Compelled participation is wrong and "may violate society's declared norms in a way that is incompatible with the proper functioning of society . . ." While consent is significant, it may be more apparent than real and courts must be on the lookout for victimization". This third type of harm does not depend on whether the conduct is private or public.

The degree of harm

The majority prescribes the harm or risk of harm as ". . . of a degree that is incompatible with the proper functioning of society." The high threshold "proclaims that as members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society."

This new standard admittedly raises difficult "value judgments" to be worked out on a case-by-case basis: "What is the "proper" functioning of society? At what point do we say an activity is "incompatible" with it?" The majority's provisional answer is that: "Only if the impact of the acts in degree of harm poses a real risk of damaging the autonomy and liberty of members of the public, judged by contemporary standards, can indecency be established."

In Labaye, the Court found that none of the requisite kinds of harm was established. The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct. The case proceeded on the uncontested premise that all participation was on a voluntary and equal basis.

Minority Reasons

Justices Bastarache and LeBel put their views strongly, noting that the new test "introduces a concept of tolerance that does not seem to be justifiable according to any principle whatsoever." The new approach is "neither desirable nor workable," and the test is "too demanding and too abstract: There is no justification for adopting a threshold that would require neither more nor less than proof that the sexual practices in issue will lead to social disorder." More importantly: "Whether or not serious social harm is sustained has never been the determinative test for indecency, and it cannot take the place of a contextual analysis of the Canadian community standard of tolerance without completely transforming the concept of indecency and rendering it meaningless." While the minority accepts social harm as an important element in the test for establishing indecency, it is not the only standard.

The community standards test is not subjective, says the minority, but requires an objective assessment by a court based on evidence and the "principles of social morality drawn from legislation."

For the minority, the central issue is social morality, which is inherent in indecency offences and is expressed through the application of the standard of tolerance. If social morality is not allowed to play a role in situations where it is relevant, "the social values that the Canadian community as a whole considers worth protecting would be stripped of any relevance." The existence of fundamental social and ethical considerations is sufficient to criminalize certain conduct.

The minority decried the majority's reliance on Mill's harm principle, especially since it was rejected by the Court in Malmo-Levine.

Public or social morality takes account of "social order, insofar as what is acceptable to the community is expressed in terms of a known social morality. The concept of harm is thus linked to social morality, not just to societal dysfunction or to the creation of a predisposition to anti-social conduct." The minority noted that contemporary Canadian social morality condemns acts such as child pornography, incest, polygamy and bestiality regardless of whether they cause social harm because they are seen as harmful in themselves.

The minority would have taken a different approach, focusing instead on a series of contextual factors that would have led to Labaye's conviction, emphasizing the private or public nature of the place; the nature of the warning given regarding the acts; and the commercial nature of the place and the acts. The minority concluded that "the nature of the factors adopted by the courts reflects the community's desire to limit the performance of sexual acts in public, especially in a commercial context."

LexView Commentary:

The decision in Labaye was controversial. The Globe & Mail ended its editorial, entitled "Just like That, There Go Community Standards", with the following comment:

You don't need to be a fuddy-duddy to cringe at the Supreme Court's libertarianism. The idea that social and ethical norms and values are reflected in the criminal law is out; in cool Canada, anything goes. Parliament should not allow the Court to have the last word on this.

More later on whether Parliament can still have the last word.

The Court's Motivation

What accounts for the Supreme Court's apparent commitment to "libertarianism" and for the abandonment of the community standards test by the Court?

The tale is perhaps told in the majority's dismissive concluding comment: "All that is raised, in the final analysis, is the assessment that the conduct amounted to "an orgy" and that Canadian society does not tolerate orgies."

It is plain from the long run of sexual misconduct cases leading up to Labaye that the Court has come to believe that sexual practices among consenting adults is a private matter about which there is no longer a sufficient societal consensus to maintain its criminal prohibition. This is based on a gut sense perhaps best expressed by Justice Lamer in 1985: "A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such law then violates a person's rights to liberty under s. 7 of the Charter."

These words recall a 1976 report of the Law Commission of Canada:

To count as a real crime an act must be morally wrong. . . . Wrongfulness is a necessary, not a sufficient condition of criminality. Before an act should count as a crime, three further conditions must be fulfilled. First, it must cause harm—to other people, to society or, in special cases, to those needing to be protected from themselves. Second, it must cause harm that is serious both in nature and degree. And third, it must cause harm that is best dealt with through the mechanism of criminal law. These conditions would confine the criminal law to crimes of violence, dishonesty and other offences traditionally in the centre of the stage.

The Commission went on to recommend that "offences whose wrongfulness and seriousness today is controversial should be carefully reconsidered. . . [i]n light of the present social attitudes, towards abortion, acts of indecency, bigamy and polygamy, incest, obscenity and pornography, and drug offences, among others." It is perhaps no accident that much of that reconsideration has been judicial over the past 30 years.

The dissenting judgment of Justice Louise Arbour in R. v. Malmo-Levine, a case concerning possession of marijuana for personal consumption, revived Justice Lamer's words:

In my view, a "person who has not really done anything wrong" is a person whose conduct caused little or no reasoned risk of harm or whose harmful conduct was not his or her fault. Therefore, for the reasons that follow, I am of the view that s. 7 of the Charter requires not only that some minimal mental element be an essential element of any offence punishable by imprisonment, but also that the prohibited act be harmful or pose a risk of harm to others.

While in Malmo-Levine the Court expressly and carefully rejected the application of the harm principle when defining the content of principles of fundamental justice, at least in relation to the possession of marijuana for personal consumption, in Labaye the majority appears to adopt the harm principle, at least in relation to indecency.

An explanation of the majority's motivation may be found in an article, "The Intersection of Law and Morals," written by Professor Steve Wexler in 1976 in which he argues that: ". . .the logical relationship between law and morals is not the same as the psychological one. . . . But, if immorality is not a logically necessary condition of illegality, thinking an act is immoral is a psychologically necessary condition for punishing someone who has done it. Judgments about punishing people are, and in a coherent society must be pregnant with judgments about morals."

He pointed to the conservative nature of the law, noting that: "the private morality which the law does embody is often not the morality of the society. The law is often allied with moral notions which may once have commanded universal adherence, but no longer do so."

The majority has expressly rejected any application of a "community standards" approach to matters they believe should be more properly viewed as matters of choice between subsets of citizens; thus a sexual orgy between consenting adults carried on in private places "does not pose a real risk of damaging the autonomy and liberty of members of the public, judged by contemporary standards." The minority did not believe that such "subsets" should be hived off from an overall governing principle that could be better monitored by the judiciary.

Mill and the Harm Principle

Oddly, the majority invokes the harm principle without referring either to John Stuart Mill or to the Court's own rejection of the harm principle in Malmo-Levine. To what extent does the majority's reasoning rest on Mill, and is it an adequate foundation?

Mill put his harm principle simply:

That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Mill recognized that self harm might ultimately harm other individuals or society in general, and thus warrants some restriction, noting ironically in the context of Labaye: "Of this kind are offences against decency; on which it is unnecessary to dwell . . ."

In Malmo-Levine the Court established that the harm principle is not a principle of fundamental justice under s.7 of the Charter, holding that: it is not a legal principle; there is no sufficient consensus that the harm principle is vital or fundamental to our societal notion of criminal justice; there is no consensus that the distinction between harm to others and harm to self is of controlling importance; and finally, the harm principle is not a manageable standard.

In short, it is too simplistic: "We . . . do not agree that the "harm principle" plays the essential role assigned to it by the appellants in testing the criminal law against the requirements of the Charter. . . .. justification for state intervention cannot be reduced to a single factor-harm, but is a much more complex matter. ...the state may sometimes be justified in criminalizing conduct that is either not harmful (in the sense contemplated by the harm principle), or that causes harm only to the accused."

The minority in Labaye reminds the majority of that reasoning in Malmo-Levine by noting that: "There are multiple criteria for justifying state intervention in criminal matters, even if it restricts human liberty. Offences under the Criminal Code are thus based on principles and values other than harm. . .. To place excessive emphasis on the criterion of harm will therefore make it impossible to give effect to the moral principles in respect of which there is a consensus in the community."

It is possible to argue that the majority's conception of "harm" referred to in Labaye is quite different from "harm" as understood by J.S. Mill, or by the Court in Malmo-Levine. But it would have been far more useful to lower courts and prosecutors to understand how these various definitions of harm relate in the mind of the Supreme Court.

The lack of clarity leaves real uncertainty about whether the harm principle applies beyond the matter of the private sexual practices of consenting adults, and whether it will now also apply to the crimes listed by the Law Reform Commission of Canada as ripe for reconsideration, or even more generally. If the Court is tested again on the possession of marijuana for personal use as in Malmo-Levine, or on, say, polygamy, or incest between consenting adults (say homosexual sexual incest) how will it respond? Will it move from the harm principle to a larger concept of social morality that may be contemplated in order to safeguard the values that are integral to a free and democratic society? It has left itself little room to do so as the dissenting judges pointed out.

Law and Morality

With its cryptic utterance that "our concern is not with the moral aspect of indecency but with the legal", the majority abruptly attempts to sever the moral from the legal and tries to sidestep the appearance of moral reasoning altogether. This squeamishness has recent precedent. In Little Sisters Books & Art Emporium v. Canada (see LexView 42.0), Justice Binnie remarked that "Butler means what it says, ie. that the community standard of tolerance is based on the reasonable apprehension of harm, not on morality".

But Justice Sopinka's reasoning in Butler did not suggest that morality plays no role in the test for indecency—or even in the concept of harm. As the Court noted in Malmo-Levine:

The appellants cite in aid of their position the observation of Sopinka J., writing for the majority in Butler, supra, that "[t]he objective of maintaining conventional standards of propriety, independently of any harm to society, is no longer justified in light of the values of individual liberty which underlie the Charter" (p. 498). However, Sopinka J. went on to clarify that it is open to Parliament to legislate "on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society".

Justice Sopinka's target was unjustifiable moral conventionality. As Bradley W. Miller observes, Justice Sopinka criticizes "moral judgments which are merely "conventional" and also false (described as 'a particular conception of morality'), and those judgments based on 'a fundamental conception of morality'—that is, judgments based on critical, true morality, which are made for the purpose of 'safeguarding the values which are integral to a free and democratic society." Justice Sopinka criticizes the former, but endorses the latter; his rejection is not that of morality in general the way the majority judges seem to have read it.

Social Morality

The minority in Labaye is alarmed at the majority's apparent refusal, through silence, to acknowledge the existence and importance of "social morality" as justification for criminal law.

The meaning and significance of the concept of "social morality" is, however, difficult to glean from the reasons of the minority. It seems to involve principles that "are recognized by the entire Canadian community as minimum, but mandatory, standards." It "is the product of values characteristic of the entire community" and reflects "a social consensus." It reflects "the social values [that] the Canadian community as a whole considers worth protecting." Social morality refers to "fundamental, social and ethical considerations." Further, "it is also related to social order insofar as what is acceptable to the community is expressed in terms of a known social morality."

Some additional meaning could perhaps be gleaned from cases that refer to "social harm". In Butler, Justice Sopinka referred to the relevant social harm as "the attitudinal harm on those watching the performance as perceived by the community as a whole", and approved the Court of Appeal's approach which referred to the degradation and dehumanization of women, and to the dehumanization and desensitization of sexuality, as being incompatible with the recognition of the dignity and equality of each human being.

Justice Sopinka also referred to the words of Justice Wilson in Towne Cinema, where she recognized the public consensus: "that exposure to material which degrades the human dimensions of life to a subhuman or merely physical dimension and thereby contributes to a process of moral desensitization must be harmful in some way."

What is lacking in these references to social morality and social harm is an overarching vision of the positive good sought to be protected by the criminal law. It seems that the Court's focus on "the unremitting protection of individual rights and liberties" has deprived it of the ability not only to see, but to understand and speak to the commitment of the Criminal Code to preserve a social environment free from powerful inducements to vice. Hence the majority's criticism that the Code's definition of "public place" is too broad; is there any real doubt that the heavily advertised swingers club was a "place to which the public have access as of right or by invitation, express or implied?"

Given the commercial nature of the venture, the minority's view seems inescapable: "the nature of the factors adopted by the courts reflects the community's desire to limit the performance of sexual acts in public, especially in a commercial context." Commercial gain is a powerful inducement to vice, and the pragmatic approach of regulating this social harm through the Criminal Code should continue to be open to Parliament.

Such a vision can be seen in the words of Robert George: "Theorists of public morality—from the ancient Greek philosophers and Roman jurists on—have noticed that apparently private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of "private" morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation."

George argues that the public interest is not in shielding people from shock or offence, but in a positive shaping of the cultural structure, arguing that, "it is the attitudes, habits, dispositions, imagination, ideology, values, and choices shaped by a culture in which pornography flourishes that will, in the end, deprive many children of what can without logical or moral strain be characterized as their right to a healthy sexuality."

The need to maintain a positive philosophical vision of community life and social responsibility inarticulately still underpins much of our criminal law, and should be respected by the Court.

The Implications of the Decision

A number of the implications have already been referred to in this commentary. Two deserve further comment.

First, police and prosecutors will likely be disinclined to pursue cases relating to indecency and related crimes. Beyond the egregious situation in which a couple are found in flagrante delicto outside the windows of a daycare centre in broad daylight at noon on a Monday, one might wonder if a prosecution could be successful.

The problem comes is a much more onerous burden on the prosecution. It is not clear that there is a social science capacity to establish the causal link between the sexual conduct at issue and the formation of negative attitudes, and then between those attitudes and a real risk of anti-social behaviour beyond a reasonable doubt.

This is in remarkable contrast to earlier decisions of the Court. For example, in Butler, Justice Sopinka appeared to rely on the accuracy of a perception by public opinion of harm to society, particularly to women: "while the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole."

In R. v. Mara, Justice Sopinka followed up on his reasoning in Butler on the matter of social harm and said: "social harm is not a fact susceptible of proof in the traditional way, but rather where the activities or material in question involve the degradation and objectification of women, or perhaps children or men, the law infers harm simply from that degradation and objectification."

Next, in R. v. Sharpe (possession of child pornography) Chief Justice McLachlin noted that: "The lack of unanimity in scientific opinion is not fatal. Complex human behaviour may not lend itself to precise scientific demonstration, and the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of." She concluded that: "This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography."

These earlier statements suggest flexibility and, frankly, more reliance on common sense. They suggest that the Court will allow Parliament a certain lee-way where the causal links are unclear. The Court in Labaye, however, seems to require, at least in respect of indecency, a much higher level of proof.

It would not be surprising if police and prosecutors decide to abandon all but the most egregious cases in order to devote their resources to other crimes. This may, in fact, be precisely what the Court intends.

Second, in the face of the inevitable challenges to a number of allegedly victimless crimes such as bigamy, polygamy, bestiality, possession of obscene materials other than child pornography, and certain drug offences, Labaye is not clear on the limits that the Court will impose on Parliament.

The majority fails to engage with the legitimate concerns raised by the minority. Silence on the issue of social morality leads to the inference that the majority of the Court thinks that it is no longer relevant to the criminal law.

And what is to be made of the remark by Chief Justice McLachlin that: "Only if the impact of the acts in degree of harm poses a real risk of damaging the autonomy and liberty of members of the public, judged by contemporary standards, can indecency be established?"

How does this differ from the old community standards test, in terms of the much-criticized prospect of judicial subjectivity and the lack of a community that can be considered to be sufficiently "contemporary"? The result is incoherent.

Can Parliament continue to legislate in the criminal law sphere on the basis of social morality or is it limited to harm? To what extent can Parliament use the criminal law to preserve a social environment free from powerful inducements to vice? It is unfortunate that the Court has left open these most essential questions. On the other hand it may well be that the degree of principled confusion in the Court's reasons is such that the decision will not survive the test of time.


This issue of LexView was researched and written by:
Peter Lauwers, Partner, Miller Thompson, LLP; University of Toronto (LL.B., Ontario Bar, 1978); York University (LL.M., 1983); with further research, editing and writing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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