Today’s edition of the Toronto Star ran with an editorial criticising the recent ruling in R. vs. Labaye that legalized sex clubs:

The new measure for tolerance is whether or not an activity causes harm. In theory, that will ease the subjectivity associated with judgments based on morals and taste. But rather than providing definitive answers, the Supreme Court decision has generated uncertainty and many more questions.

… The problem with a harm-based approach, however, is that “harm” is almost as difficult to define as indecency. As sex clubs proliferate, which they likely will following this ruling, will women be increasingly pressured to take part? Is harm done when a woman, perhaps desperate to save a faltering marriage, “consents” to group sex at her husband’s insistence? If that sort of harm were shown to happen in a sex club, should that club be closed?

… “Harm” could be as hard to define as morality-based indecency … And why shouldn’t the court’s harm-based approach extend to making marijuana legal, on grounds that it is relatively harmless, at least when compared to legal stimulants such as alcohol and tobacco?

Notice that line about sex clubs proliferating: “As sex clubs proliferate, which they likely will following this ruling…” Does anyone really think that sex clubs will start popping up everywhere because of this ruling?

It’s important to understand exactly what this case was really all about. The appellants in the case were arrested for running a common bawdy house, defined in the Criminal Code as a place where prostitution or “indecent acts” occur. Since there was no prostitution occurring in these clubs, the question the Court had to ask became “what is an indecent act?” This question is important because the term “indecent” is not defined anywhere in the Criminal Code.

The Court explored the term “indecent” and found that the activity that was going on in the sex clubs was not indecent and therefore the clubs were not bawdy houses. The Court did not rule that government intervention or regulation was not justifiable. It did not strike down bawdy house laws. It did not rule that government criminal legislation must be justified on the basis of harm.

The big problem with The Star’s editorial is that it’s written as though the people who wrote it didn’t bother to do any research. The Star argues that the ruling leaves too many doors open by leaving harm undefined. In fact, harm has already been defined in Canadian law. One of the decisions cited by the Court, R. vs. Butler, explains the definition of harm in the context of obscenity:

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 anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance.

The Court in its decision uses the definition of harm from R. vs. Butler as the basis of its theory of harm and goes on to provide three examples of harm, leaving open the possibility that these are not the only types of harm that might occur:

  1. confronting members of the public with conduct that significantly interferes with their autonomy and liberty
  2. predisposing others to anti-social behaviour
  3. physically or psychologically harming persons involved in the conduct

The Court goes on to explain in some detail how these different types of harm can be demonstrated. The Star seems to believe that the term “harm” is undefined, but that’s only because they didn’t research the precedents cited in the case.

The Star’s hypothetical scenario in which a woman is pressured to consent to group sex has absolutely no bearing on the question of sex clubs. If anything, this would be material for divorce proceedings, not a criminal case. What if a woman is “harmed” because she is pressured by her husband to get breast enlargement surgery and “consents” to the surgery? Does that mean that the plastic surgery clinic should then be closed? People are pressured to do things all the time, and not just by spouses in faltering marriages.

The last question The Star asks is whether the Court’s harm-based approach couldn’t be extended to make marijuana legal. This is the stupidest part of the entire editorial, because Criminal Code penalties for marijuana possession and distribution have absolutely nothing to do with the definition of indecency.