In this issue:
Indecency; Discrimination; Community Standard of Tolerance
July 19, 1991 was a particularly hot and humid day in Guelph, Ontario. Gwen Jacob, a 20 year old student at the University of Guelph, removed her shirt and bra before walking down several residential and commercial streets in Guelph and returning to her front porch. She testified that she felt more comfortable without her shirt on, and she believed that any law requiring her to wear a shirt in public places was unfair and must be unconstitutional for discriminating against women. After a few complaints (none of which were from the teenage boys assembled with binoculars across the street) the police requested that Ms. Jacob put a shirt on, and after she refused, she was charged with committing an indecent act, contrary to S. 173(1)(a) of the Criminal Code. She was convicted in the Ontario Court of Justice, and then appealed to the Court of Appeal for Ontario.
The only issue on the appeal is whether it was an indecent act, as defined in section 173(1)(a) of the Criminal Code, for the accused to be walking in a public place without a shirt on. There were no constitutional questions raised on the appeal.
The Court allowed the appeal, finding that Ms. Jacob's actions did not contravene section 173(1)(a) of the Criminal Code.
Section 173(1)(a) provides that everyone who willfully does an indecent act (a) in a public place in the presence of one of more persons, is guilty of an offence punishable on summary conviction.
The trial judge noted a dictionary definition of 'indecency', ("not decent, unbecoming, unfit to be seen or heard, offensive to modesty and delicacy"), before considering how the term has been treated in previous case law. Judge Payne noted that other women in Guelph did not choose to go about bare-breasted, and this, together with other evidence led him to the conclusion that Ms. Jacob exceeded the community standard of tolerance. Judge Payne held that Ms. Jacob's actions were indecent and therefore contravened section 173(1)(a). He also held that section 173(1)(a) did not violate the Charter's equality provisions:
The essence of the matter here, as I see it, is that anyone who thinks that the male breast and the female breast are the same is not living in the real world. The female breast in its physiological components and its role in the sexual life of the female and the male partner, and in the nurturing of children places this part of the anatomy, as far as I'm concerned, in the community standard to be a part of the anatomy that should not be exposed gratuitously and continuously in public places and the rights of other members of the community not to be presented with this spectacle and offended by it ought to be recognized.
The Court of Appeal agreed with Judge Payne that a finding of indecency under section 173(1)(a) required that the act exceed the community standard of tolerance. However the panel found that Judge Payne applied the community tolerance test incorrectly. The essence of 'tolerance' is not that people have accepted or rejected a particular activity as good for themselves, but rather that they will accept that others be permitted to engage in the activity, notwithstanding their personal disapproval of it.
In applying the community standards test, the Court of Appeal found that it was irrelevant that most women in Guelph chose not to expose their breasts in public. Rather the Court assessed what the contemporary national community would tolerate.
The community standards test is set out by Justice Sopinka in R. v. Butler,  section 1C.R. 452:
The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. . . . The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.
At the heart of the community tolerance test is the notion of harm; as Osborne J.A. went on to explain:
It follows from Butler that in applying the community standard of tolerance test, the court must consider what harm will accrue from exposure to the allegedly obscene act or material. The correlation is inverse in the sense that the greater the harm that may flow from a particular exposure, the less the community will tolerate others being exposed to it. Tolerance cannot be assessed independently of harm.
The Court of Appeal held that the only evidence presented that suggested that Ms. Jacob's actions were harmful was 'grossly speculative'. As the Court was not satisfied that there was evidence of any harm, it concluded that the national community would tolerate women choosing not to cover their breasts in public.
Even though the Ontario Court of Appeal handed down this decision in December of last year, the issue only began to ripen, in the heat of the summer sun. The ensuing public debate, bolstered by the occasional exercise of the newly unveiled 'constitutional right' at swimming pools, gas stations, and highways, suggests to us that a rather poor reading of this decision is fast becoming the prevailing orthodoxy.
The Court of Appeal in fact did not declare that a woman has a constitutional right to expose her breasts. It did not say, as Ms. Jacob had requested it to, that laws requiring women, but not men, to cover their breasts constituted discrimination. In fact the trial judge specifically said otherwise, and the Court of Appeal did not overrule Judge Payne on this point. The Court of Appeal did not address the issue of rights.
Far from the Court cramming Ms. Jacob's actions under the canopy of equality rights, all that the Court said was that Ms. Jacob was not guilty of the specific offence with which she was charged, namely committing an indecent act. At the very most, and we would even contest this reading, the Court declared Ms. Jacob to be at liberty to stroll topless through Guelph as there is no law against it. However the Court was only dealing here with one particular section of the Criminal Code. Conceivably, and the Court in fact makes this point, Ms. Jacob could have been charged with other offences, such as creating a public nuisance or being nude in a public place contrary to section 174(1). Why she wasn't charged in this manner is something of a mystery. Why others riding in her wake have not been so charged is more a reflection of political will than any uncertainty or license created by the law.
Turning to the issues actually before the Court, this decision once again brings to the fore the inadequacy of the community standards test for determining 'indecency'. The test requires that there be a requisite degree of harm before an act can be judged 'indecent' or 'obscene'. The Court of Appeal found that Ms. Jacob's actions, being with neither sexual nor commercial intent, were not degrading to women and caused no harm. The less sophisticated members of the national community were told to look away if they were offended. The Court, having concluded that women are not degraded by Ms. Jacob's display, might be surprised at the annoyance of women who have tired of being asked at the watercooler when they plan on exercising their 'constitutional rights'.
We reiterate our concern about the court's excessively individualistic conception of 'harm' (see LexView 6.0, R. v. Mara and East). The Court of Appeal required evidence of harm caused by Ms. Jacob's refusal to cover her breasts. Such expert evidence was not presented at trial, in no small part because Butler, the case equating the community standard test with harm, had not been decided yet. In any event, the court was told of rude comments made by some men, and the eager enclave of young voyeurs across the street. It also heard from the mother whose choice not to have her young children exposed to a stranger's partial nudity was overridden by Ms. Jacob's frankly exhibitionist conduct.
Justice Osborne essentially tells the public that if they lack the maturity to see a woman's breasts, then they can look away and no harm is done. "No one who is offended was forced to go on looking at her." This is partially true. It would be entirely true, except that many motorists, shoppers, and swimming pool patrons rely on sight to navigate streets and wading pools, and sight is notoriously indiscriminant. Undeniably in the recent situation in which four Vancouver motorists collided while passing through the wake of a topless cyclist, the drivers would have been better off not to go on looking. By parity of reasoning, could not the same "exception" have been made in the B.C. case of R. v. Lewis with respect to peaceful pro-life pickets inside "bubble-zones?" In Lewis, the mere presence inside the zones was deemed to have constituted a "threat" to women who did not wish to see the signs or witness people standing in silent prayer. Surely, if a "look away" approach is satisfactory for toplessness, it is also satisfactory if silent praying or picket signs cause offense outside abortion facilities. If the courts in Canada are going to give guidance through their judgments, principles such as this will need to be reconciled by the higher courts.
This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
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Copyright © 2010 Iain Benson and Brad Miller
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