The Supreme Court Of Canada has now erased the principle of community standards in law.
“Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society. The Crown failed to establish this essential element of the offense. (Its) case must therefore fail,” McLachlin wrote.
In indecency cases, Canadian courts have traditionally probed whether the acts in question “breached the rules of conduct necessary for the proper functioning of society.” The Supreme Court ruled that from now on, judges should pay more attention to whether society would be actively harmed.
By the way, Justice McLachlin recently had this to say.
�The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion,� said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.
�There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue.�
Chief Justice McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as �norms that are essential to a nation�s history, identity, values, and legal system.�
I’m sure you remember the media and political firestorm that caused.
Yeah, me either.
Reading the comments, I’m surprised that nobody has yet raised the point that this ruling has pretty much set the stage for legalization of bigamy.
Related thoughts from Stanley Kurtz.
Why should anyone care what consenting adults do in the privacy of a locked room if nobody is harmed?
Sorry, Kate, but I think the court got this one right.
But even consenting adults is a phrase that has to be legally established and socially recognized. If consent is given to be strangled by one’s sex partner then because there is consent is that act not now a crime of murder or manslaughter. In a democracy or republic the citizens make such decisions on a daily basis and sometimes these decisions will restrict the “rights” of some minority. The essence of a democracy is to establish and recognize the rights of the majority over the tyranny of a minority, regardless of how smart or virtuous that minority might be.
John G.
I agree with you mostly but IMO the problem is in the following quote:
“Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society.”
“Actual Harm” is very questionable, after all a Flasher doesn’t actually do any “Actual Harm” to a woman or child when they flash them; they’re after all only showing of parts of their body which, for the most part, their victoms have already seen or will see in the future.
Famous Penultimate Words:
“What harm could it do?”
Famous Last Words (uttered 10, 20 or 30 years later):
“How were we supposed to know…?”
The Supremes made a good decision here. This is just “keeping the government out of the bedrooms of the nation”. Only there is more than two people in the roon and, oh yeah, the bedroom is some swingers club located in a seedy industrial park. People fornicating in large groups doesn’t do harm to me but government stealing my tax dollars does. Let’s get our priority straight.
NoOne, there is no consent in the act you describe. No one is suggesting that public indecency should be allowed.
But you have a room full of people who all want to be there, that are not causing each other any harm. Why should this be illegal?
Government has no place in the bedrooms (or back-rooms) of the nation.
I’m glad they finally got rid of this provision. Such standards were very hard to measure, and it was hard to tell what the judges were basing their decisions on.
In a rare occasion the Supreme Court got this right. In no stretch of the imagination can you suggest that a group of people having sex in private constitutes intervention by the state. What is really frightening is that this even made it to court at all. To attack ones freedom of association is lethal to democracy.
People on this blog have generally advocated for less government intervention and control in our everyday lives.
You cannot have it both ways.
Sounds like the sodomites won another round. They win a battle or two but there is more to war than just 1 or 2 battles.
john g:
No one is suggesting that public indecency should be allowed.
But that is precisely the point. It further blurs the definition of what “actual harm” can be so that what you or I (but not a judge) considers “public indecency” can now be allowed.
Flood gates, thou art opened.
We should be focusing on reducing the scope of the state, not increasing it. The social conservatives do not understand this and do not realize that going after these victimless crimes makes them into hypocrites.
Doug, the SCOC is ruling on what happens in private. Not in public.
I just wonder where the community will stand when the consenting group consists of 15 and 16 year olds – or when the court decides to uphold (read impose) new “unwritten” constitutional norms.
John G.
As Doug has already pointed out
“Criminal indecency or obscenity must rest on actual harm”
No where does this statement reference consent, only that “Actual Harm” must be done in order for something to be considered an idecent or obscene act. The point is, making a statement like “Criminal indecency or obscenity must result from lack of consent” would be what you’re talking about (and I completely agree). Law is all about precise statements and precidence; all that it takes to have a reasonable ruling to become a tragedy is for a poorly choosen statement to be interpreted by a crooked lawyer and accepted by a judge.
I don’t know, for me it seems cut and dried. What goes on behind closed doors (and is legal) is none of my concern. Swingers club or gun enthusiasts, it makes no difference to me. These are all adults here so let it go. I think that the term common sense should also be used when doing the “What ifs”.
BTW: If it matters any, I’m 30+ years monogamous so it isn’t an issue I have any personal stakes in.( as I value my life!)
2 thoughts:
1) the SCoC got this one right. What happens in private (in this case behind locked doors) among consenting adults is not anyone else’s business, as long as no harm or possibility of harm is involved.
2) The remarks quoted in the second part of this post do, to my mind, raise a red flag:
�The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion…�
At this point we have new “unwritten constitutional norms” which are predicated on other “unwritten constitutional norms”, none of which were included (and in some cases were specifically *excluded* from) Trudeau’s “gift” to Canada. Here there be dragons….
Sean
Stop the country- I want to get off! The Supreme Court is a group of appointed flakes who don’t even come from the same planet that I do.
(Considering what they pay themselves-out of my taxes- to navel gaze- do me a very big favour and shut the hell up!)
In light of other SCOC rulings in the past, they really had no choice here…I was really surprised that there were two dissenting judges.
Next up….Group Sex Pride Parades
Conservatism is on the rise in The Great White North!
In this case, the supreme court got it right.
Conservatives often advocate less intrusive government. This is a perfect example (though I wish it had come from the legislature!)
No consensual act between parties capable of giving consent (i.e. competant adults) should be illeagal unless some direct harm to and Identifiable person can be shown. Things should not be illegal because they are “bad for society”. Acts should be illegal if they harm a specific, non-consenting person or are inextricably linked to doing so.
For example, a person could go to one of these clubs, take part, go home, and go to work the next day and there would be no damage other than offending a few people’s sensabilities.
The same is true of prostitution, gay marriage, polygamy and most (though not all) drugs.
Community standards is an obsolete concept in the abscence of a true moral consensus in the community (and in any diverse country, there can be no such consensus). Therefore, governments are best left to protecting rights, as opposed to enforcing norms.
G’day, eh.
Let me try an approach for those of you who don’t wan’t to get it…or who feel a sudden need to embrace Trudeau’s bedroom drapes.
Developmental psychology discusses a stage that humans are expected to pass through as young children if they are to grow into mature adults. In rough terms, it is where the individual suddenly appreciates that the world and reality exists separate from their own perceptions.
Permit me a real-life example: Years ago, I was speaking to a friend when her 4 year-old son ran up, pulled his woolen toque over his eyes and said, “You can’t see me.” Clearly, this is not the reality and the boy was in error.
And so, members of the SCC pull their ermine capes over their eyes and see no harm. It is, if I might broaden the argument, the same logic that permits the destruction of human life where a nearly fully-formed child remains unseen by human eyes, but hid only by amniotic fluid and a layer of mother’s flesh.
This is not legal or moral progress. This does signal or favour the evolution of humanity. It is psychological and legal ‘toque-pulling’.
That which is without is also within. The mind, it is said, follows the body. And that affects each one of us.
I have to agree with most people here – the SCoC got this one right.
Consenting adults, behind closed doors etc.
Do we really want government getting involved in this arena? No!
No community standards=No community
This is like trying to repeal the law of gravity.
You remain in free fall.
The Supreme Court got it wrong. The state has no place in the bedroom of the nation. It does, however, have a place in COMMERCIAL PUBLIC MATTERS DUHDUHDUH!!!
“Neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years that he shall not do with his life for his own benefit what he chooses to do with it. All errors he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to do what they deem his good.” –John Stuart Mill
“Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.” –Thomas Jefferson
The super centralized control mechanism of the single party state can’t have silly things like community standars or traditional legal axioms fouling up our head-long rush into Jurocratic dictatorship.
All standards eminate from the central controllers and inconsistancy will not be tolerated.
Again, we see there is notheing les liberal than a liberal and nothing less just than their sense of social justice….typified by “zero tolerance” bureacratic and jurocratic tyranny.
Frankly, If the people in my community think public acts of perverts is unacceptable the aristicrats on the SCC can get stuffed.
I appologize beforehand for partially jacking this thread, but I don’t know how else to introduce the subject of the wedding of Elton John and David Furnish. And besides, the issue of SSM has a lot to do with community standards.
Does it not appear very interesting that Elton and his Toronto partner chose to become civil union partners in a U.K. ceremony rather than be fully married in Ontario? Wasn’t civil union the policy suggested by the Conservatives (and a large number of Liberal and NDP dissidents)? Does the decision of Elton and Mr. Furnish not suggest that the planet’s most prominent gay couple, when given the choice of being fully married (under the law of Mr. Furnish’ home jurisdiction) or joined in a civil union with virtually the same practical result, the marriage issue wasn’t all that big after all? So explain to me again why we had to frivolously change the meaning of the word marriage? If it is good enough for Elton John and David Furnish, does that mean we’ll now hear an appology to Stephen Harper for suggesting the civil union route? Oh, OK, I thought I’d ask anyway.
I thought conservatives believed in a market economy! If I can make money providing a place for consenting adults to have sex, let the market decide! Why is this even a debatable question?
The supremes made the right call on this one. The state has no business legislating sexual activity between adults.
Post script: If her highness Lady Bev of Pincher Creek thinks that Canadians are under any legal obligation to obey laws which are not written in code nor the constitution,…which only exist in her head…then she’s as high as the rarified air she’s Bogarting.
Up your Kilt Bev! If you think you can enforce laws which do not exist in text….you are in for a rude civil awakening.
MGK
‘Developmental psychology’?
Aren’t those the same fine folks who brought us ‘false memory syndrom’?
The age of consent in Canada is 14.
Are you all still so enthusiastic?
Libertarians. Blech.
Oh, yeah…
What’s wrong with legalized bigamy?
I know I’m not interested in another wife, but why should the state care who does who?
Well, I have previously said that if the state leaves the gay bathhouses alone, then they should leave the straight peoples’ swinging clubs alone. I was ready to make a stink if the SCOC had ruled the other way. I would’ve declared that they’d have discriminated against straight people.
Also, I recently had this to say about Justice McLachlin’s views on judicial activism:
http://thecanadiansentinel.blogspot.com/2005/12/anarchistic-santa-impersonators.html
“Reading the comments, I’m surprised that nobody has yet raised the point that this ruling has pretty much set the stage for legalization of bigamy.”
I figured Bill C-38 already did that.
“What’s wrong with legalized bigamy?”
Why do you simultaneously reject recorded history, human nature, the welfare of children, and logic? Please consider the possibility that group marriage is not encouraged among advanced civilizations chiefly due trial and error, and that the onus is on you to explain why Canada needs to change its marriage laws to include some good polygamy, not for others to justify the state’s eminently sensible ban on group marriage.
It shouldn’t be surprising that a judicial system that set the political stage for the implementation of SSM by the dictatorial Martin has made the ruling as it did today.
Not that I have a real problem with it– actually, I would argue it’s a ruling affirming equality for straights. Think about that. Finally, our society becomes “progressive” for regular folks, too!
I’m a tad tongue in cheek about this matter, no pun intended.
“Why do you simultaneously reject recorded history, human nature, the welfare of children, and logic?”
Citations to back up your assertion that bigamy somehow is a rejection of recoded history? Polygamous marriage has a long record in human history stretching all the way to (gasp) today!
“Why do you simultaneously reject recorded history, human nature, the welfare of children, and logic?”
Citations to back up your assertion that bigamy somehow is a rejection of recoded history? Polygamous marriage has a long record in human history stretching all the way to (gasp) today!
One final comment: the SCOC has actually also legalized adultery. Or was it already legal? There seems to be a leftist movement afoot in the US to legalize adultery now. Geez, it feels like Canada’s getting all screwy around us and we don’t realize it till the MSM gives us a headline…
Oh great! Now I can go to an orgy, I just can’t have a smoke afterwards.
Many Canadians crying foul on this Gomorra report
read and see them here
http://tinyurl.com/7bu49
This is all more sexual confusion …
here is an example of that very thing
http://tinyurl.com/cswnu
I always chuckle when that near-sexless, hypertrophied mass of cerebral tissue and Victorian inhibitions known as John Stuart Mill gets dragged into these kinky law cases.
…The age of consent in Canada is 14…
In addition to chapters on sexual intercourse, anal sex, oral sex, masturbation it’s just one more chapter to be added to your child’s sex-education curriculum.
Is this what they mean by getting a ‘higher education’?
If I understand this correctly–I can now bed as many people as I want to behind closed doors as long as they ‘consent’, but I can’t have a cigarette in a bar or restaurant, even if those around me consent? Bars and restaurants are private businesses, inhabited by people who chose to go there for whatever reason. If the owners consent to me having a cigarette why do provincial governments deny me that right. Guess I will have to quit smoking and start screwing around?
It is a sad state of affairs when smoking a legal product becomes anathema to the courts but sex orgys are considered ok. Does this make AIDS acceptable–after all, there is nothing mentioned about having to go outside if you are HIV positive. Does that not pose as great danger to the participants as smoking does?
Since we now have sin clubs legal why not legalize chicken ranches. At least these babes are given regular health checks. Oh, and then all gays and lesbians will want their own little sex sorties. Hey why not, we’re politically correct.
On the scuzzy orgy thing I’m with Vitruvius and his pal J.S. Mill.
‘Age-of-consent = 14’ can be dealt with separately. This law definitely needs to be changed.
I want a club like that. How do you start one?
The problem with this ruling is that it allows an established business to offer this as a service. This has nothing to do with what adults are doing in their own bedrooms; it is now a business promoting a certain lifestyle for consumers to try. This is certainly a high risk lifestyle for STDs such as Herpes and AIDS to name but a few. Did the judges not consider this when deciding that it was okay for a business to promote this kind of lifestyle and make it easily accessable to everyone?
What the Illuminati had to say about this – quotes from “Pawns in the Game” by William Guy Carr.
1. “The speaker started to unfold the plot by saying that because the majority of men were inclined to evil, rather than good the best results in governing them could be attained by using violence and terrorism and not by academic discussions. The speaker reasoned that in the beginning human society had been subject to brutal and blind force which was afterwards changed to LAW. He argued that LAW was force only in diguise”
2/ “He next asserted that political freedom is an idea and not a fact. He stated that in order to usurp political power all that was necessary was to preach Liberalism so that the electorate, for the sake of an idea, would yield some of their power and prerogatives which the plotters could then gather together into their own hands.”
3/ “The speaker asserted that the Power of Gold had usurped the power of liberal rulers even then i.e. 1773. He reminded his audience that there had been a time when FAITH had ruled but stated that once FREEDOM had been substituted for FAITH the people did not know how to use it in moderation. He argued that because of this fact it was logical to assume that they could use the idea of FREEDOM to bring about “CLASS WARS.” He pointed out that it was immaterial to the success of HIS plan whether the established govermnents were destroyed by internal or external foes because the victor had of necessity to seek the aid of “CAPITAL” which is entirely in our hands”
The speaker was Mayer Rothschild and the speakers today are the monies that are pushing us toward “One World Government” Very devious, and very scary. Don’t you just love those LIBS.
“One final comment: the SCOC has actually also legalized adultery. Or was it already legal?”
That should be an easy one to answer. Anyone you know ever been charged with a crime for screwing around on their spouse?
Adultery’s completely legal in the criminal sense. It’s grounds for divorce, but it’s not a crime.
SCOC got this one right. The state has no place here.