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.
Wow! This one has generated a lot of posts.
It seems the fundamental issue here is one of presumed causality–what is the null hypothesis in social-cultural matters?
In a Christian-Islamic worldview, it seems social constraints must be imposed universally. This is on the presupposition that, for example, relaxing sexual mores would cause distintegration of important social institutions, such as the family, which produces and nurtures children. (Any society that loses sight of that goal will disappear over time.)
What the Supreme Court has said is that the onus has now shifted. Now, to interfere with consensual behaviour, the state has to produce cogent evidence that failing to restrict sexual attitudes universally will lead to harm.
I’m not so sure that is the right test. Concerning emergent phenomena, once a tipping point is reached there may be no easy retreat. As Oliver Wendell Holmes Jr. observed, social experimentation is a fine thing, so long as one appreciates it takes a century to regrow a tree. Look at Aboriginal society in Canada, which has largely been in a state of social collapse for a few generations with no glowing prospect for immanent recovery.
With respect to the “Lifestyle” movement, it hardly seems a major threat. The demographics show them to be largely middle-class conservative married couples that do not intend to have more children. Violence at the functions is unheard of STD transmission rates (particularly AIDS) are minimal. The threat to family institutions is minimal at best.
What Christians and Muslims must adapt to accept is that their religions have to be able to function within a social context where they do not dominate and dicate the social conventions of others. The Jews seem to have adapted better in this regard, as Jews have historically been a minority presence within other cultures for some time. Jewish culture has adapted so as not to require that non-Jews follow Jewish conventions. (BTW, I’m not Jewish.)
Bigamy is its own punishment.
(old one, but good one)
“So it would be perfectly and democratically ok to e.g. restrict free speech?”
I’m not saying it would be GOOD, I’m saying it would be DEMOCRATIC if the majority wanted it. To explictly protect judicially-enforceable rights in a constitution is to impose LIMITS on democracy, which themselves may be limits one agrees with or not. Democracy does not equate with freedom, let alone with “my personal conception of justice, or whatever I think is a good thing;” it only means majority rule, period.
My larger point is that while the judiciary have a valid and important role, they undermine their own legitimacy when they seek to act as philosopher-kings.
Now, let me see: legalized bathhouses, legalized sex clubs, and legalized prostitution = a multi-million dollar sex industry. Now who does that bring to mind?
So what is actual harm?
The problem is the logic is based on an illogical concept of extreme individualism.
So “swingers” consent to a sex act. But if the someone gets a disease the health care system, that’s all of you, has to bear the cost. And if they are married then their family, and society, may have to bear some cost if this contributes to its end. And some harms aren’t immediate or measureable but we know from experience they are real. There are literally hundreds of possible implications of what is supposed to be a private and consenual act.
The truth is there is simply not such a thing as consenting adults capable of doing something that is totally isolated from the rest of their lives, including the future, or some greater group.
The law can say what it wills but facts are facts and sooner or later people are going to pay a very steep price for playing the game outside the rules.
Okay John,
“The truth is there is simply not such a thing as consenting adults capable of doing something that is totally isolated from the rest of their lives, including the future, or some greater group.”
but couldn’t that same argument apply to ANYTHING?
Example: a person who eats fast food and refuses to excercise is, in the long run, adding costs to the health care system. Do we outlaw cheeseburgers and force everyone to run to work?
Or, in a more extreme example, everyone who has children knows or ought to know that there is a possability that those children will have severe developmental disabilities which will impose a significant burden on the health and education systems. Do we therefore ban such “high risk” activities by forbiding people with a family history of these disabilities from having children?
Of course not.
Adults own their own bodies. They may do with them as they please, so long as they do not interfere with the right of others to do so.
Thus, the only decisions that may be jusitifably forbidden by the state are those that are inconsistent with the equal right of everyone to personal autonomy, or those that almost inevitably lead to conduct inconsistent with that right.
To have laws contrary to this priniciple, i.e. that are inconsistent with the right of self-ownership, necessarily implies that the state holds some proprietary interest in individual citizens. On an extreme level, this reasoning leads to treatment of people as state property, as is the case in Stalinist systems.
Dave,
While I agree with your larger point, I must take issue with your definition of democracy.
Democracy is NOT, by definition, mere majority rule. Literally translated, it means “rule by the people.” While majority rule is clearly part of democracy, it is not all of it.
Democracy, in order to function, requires underlying conditions. It requires, for example, the protection of voting rights and free expression. After all, elections would be a poor expression of the will of the people if they could be rigged to only allow majority supporters to vote or promote their views.
You are correct inasmuch as you say that the fundamental principle of democracy is that the people get to decide. However, certain checks on majority power are necessary in order to ensure that the decisions of the people are freely made and legitimate.
In this sense, a strong judiciary protects democracy, rather than undermines it.
Vitruvius; Sorry for the delay, yes, the 10th Amendment does define the status of the unenumerated powers between the states and the federal government. The difference would be that these decisions are none of the business of the federal authorities because they are powers that the states did not give up. The feds did not bestow these powers and thus cannot “let” the states act. The tension is simply that the nature of a federal system is that power is constantly taken from the states in the guise of good government, broad readings of the clauses and amendments and the natural inclination of men to simply concentrate power because they simply want that power.
Kate; Great post and comments, let’s do it again.
Canada continues its moral decline
The fabric which holds the Western world together is quickly being torn to shreds
…
“The above must be one of the more tasteless and primitive comments I have ever read on this blog.”
Glad to hear that my reputation is still intact.
“Why can’t The Swingers just stick to discrete “fondue parties”, like they did in the seventies?”
Because it sucks when you get cheese stuck in your pubes.
Does anyone here understand how our system of government works? It’s based on unwritten principles and conventions.
All these people were crowing about Martin defying constitutional convetion in the summer non-confidence vote, but here they are now screeching against consitutional convention when the Chief Justice of the Supreme Court points out the obvious principle that parts of the Canadian Consitution are unwritten.
Honestly, read some books, people.
I’m surprised and disappointed with everyone in here that supports the Supreme Court’s decision. I thought the individuals that visit SDA had more moral foundation and personal insight than that.
The court’s decision is nothing less than another big nail in the coffin for the traditional family. Not long ago most people would agree that the family unit was THE essential building block on which a strong nation is founded. Now I don’t know if many of “conservative ilk” could even find it within themselves anymore to agree. It seems the people of Canada believe more in a good time for themselves than in a greater good for all.
This latest court decision along with same sex marriage and other near-future challenges to our national fabric (polygamy, age of consent for anal intercourse, etc.) destroys our society’s ability to create and grow families. Fewer and fewer “adults” will even bother having families (why bother when it only gets in the way of having fun) and those that do will be at a great disadvantage with trying to raise responsible contributing children in an increasingly unbelieving and unsupportive environment. With a severely weakened family unit, how can it not result in a severely weakened nation? This isn’t just about “sex”…it’s about how we as a people are choosing to interact with each other. When we cheapen those interactions we cheapen ourselves and our community…to the detriment of everyone.
Merry Christmas!!!
Martin,
I’m sorry, but what you have said is entirely unsupported.
Why, exactly will the fact that people can belong to a swingers club or marry somone of the same sex
affect the desire of young people to have families?
I’m in my mid-20’s, and I fully expect to have a family someday. That is my choice.
But it wouldn’t be right to force others to want the same things I do.
Other adults of all ages may have different desires. Does the fact that they want to express those desires outside of a “tradtional” family somehow make them immoral people? If so, why?
In my view, it is immoral to limit people to a single lifestyle option. It amounts to forcing a false choice on others (traditional family or nothing).
Giving others the right to make their own choices in no way devalues the choices I make. I do not suffer if they decide to belong to a swingers club. They, however, suffer if I tell them they they will go to jail if they do.
Well stated Marty B., Merry Christmas!
GM, Marty B has the big picture. Vitruvius said:
“At the end of they day, if these so-called swingers’ clubs become a pronounced problem (they currently are not), then the solution will be to convince them to change their attitudes, not to adjust the state’s chains on their behaviour. The latter will eventually lead to death by being buried alive under the state’s regulations.”
Marty is talking about what it will be like at the end of Vitruvius’ day. It is about teaching morals to your kids. The liberalized public school system does so only in their lesson of the golden rule and not to plagiarize. That was it. Not much to be had there. It is still the families that put the morals into their kids. All the kids that grew/grow up in daycare and are raised by the school system are missing out. They are the ones that are wearing the touques over their eyes.
“It is still the families that put the morals into their kids. All the kids that grew/grow up in daycare and are raised by the school system are missing out.”
I agree with this statement wholeheartedly.
But even if Swinger’s clubs became commonplace, what on earth would that have to do with “putting morals into kids”?
There are plenty of things that are legal now (gambling, alcoholism, etc) that kids should be warned about. The fact that these go on and are legal does not (hopefully) stop parents from teaching their children the difference between right and wrong.
Are you saying that something has to be illegal for parents to persuade their kids that it’s wrong?
Families are vital. there is no question of that. But I fail to see how the existence (or even potential popularity) of clubs like the one in question threaten families.
Why does the existance of one lifestyle threaten another? Is it not possible to help traditional families without outlawing alternative lifestyles?
I mean, it’s not like we try to “protect” one language by trying to ban another….oh wait….
The National Post editorial today was in favour of the decision, the Globe & Mail against.
Martin. I for one do not agree with the Supreme Court decision. I read it, and I have to disagree with both the dissent and majority. In my opinion, the question is a legal one, not a moral one (about whether or not people should legislate the bedroom). The legal question is whether this is prostitution or not. It was barely addressed in the decision today, which I think is too bad. I believe it was prostitution based on the facts that no money up front=no sex. In my opinion, the decency/indecency debate was superflous. I don’t even know how one could define decency other than by deferral to the legislature. By this spirit of that criteria, it appears that the Supreme Court is drunk on its own power.
GM,
You’re obviously not into the higher power, greater good thing so explaining why a lifelong commitment to one person of the opposite sex is important in raising responsible contributing kids is a wasted effort. You live for yourself alone in the here and now…so off you go to have your fun as a sex puppet. If you ever have kids I hope a much less selfish attitude will make it’s way into your awareness for their sake.
I went into “Chapters” to Christmas shop the other day and right at the store entrance was a very obvious display in the store. In fact it was the first thing you saw in the whole store. See, it wasn’t a Christmas display…it was a hardcopy display of Milton’s “A Paradise Lost”. An eloquent piece written about the road to hell (something I can relate to every Christmas shopping season). It’s strangely fitting for Christmas 2005 given what the government and supreme court have done this past year to weaken the family.
I’ll apologize in advance for preachiness…so if you don’t care for it, read no further.
I believe that our choices and actions follow us and our families. There are consequences for immoral behaviour, some obvious, some not. Taken alone, the legalization of sex clubs isn’t going to change much in my daily life. But it’s one more firm step in the wrong direction and you don’t have to take many of those steps to get lost. There will be demands within Canada to continue ever more faster down the road to hell. Unless we as a society take a stand and say NO!!! it won’t stop and will build upon itself until the concept of family is harmed enough that it ceases to exist.
I have a daughter now and love her more than anything. I want her to grow up with dignity, honor and decency. I want her to keep those qualities throughout her life. Those qualities don’t exist in sex clubs, they can’t. So why would a father not want to protect his kids from the very existence of those clubs where higher beliefs and qualities are tossed like pearls before swine? Why wouldn’t a parent want their kids to look forward to the opportunity of raising a strong family too? Do we really have no choice but to make Milton’s book into Canada’s reality?
Jonathan: The money paid was not for sex, it was for access to the club; the small fee that was paid was NOT a transaction between the people having sex.
The reason the Court had to define the term “indecent” is because that term is not defined anywhere in the Criminal Code. Parliament retains the power to define the term “indecent.” Were it to do so, this precedent would be overridden.
Martin,
Contrary to what you seem to think, we probably share many of the same values.
I believe in the greater good. I believe in a higher power.
I do not consider myself a selfish person.
I have no interest in being a “sex puppet” or anything of the sort.
That said, I am humble enough to know that I am just a man. I do not have the right or the ability to determine what is right or wrong for others.
Of course I know that immoral behavior has consequences. Everything does, for better or for worse.
The values that you talk about instilling in your family are admirable and it is clear that you take your responabilities seriously. More people should do that.
BUT…
My choices pn personal moral issues DO NOT limit the choices that others are free to make. Likewise, the immoral choices of others do not compell me to approve.
I don’t approve of what goes on in these clubs, either. But so long as no one is compelled to participate, and so long as no one not willingly involved is harmed, it is not my place, nor that of the government, to judge the conscience of another person.
The values you talk about are the foundation of the family. That is who should instill them : THE FAMILY. The government should not try to instll values, because the government would then be allowed to DECIDE and JUDGE values…and down the slippery slope to tyranny we would go….
People SHOULDN’T be selfish. They SHOULD be responisble and think of others. But these choices are only of value if they are freely made.
fucking….liberals…appointed…reconstructionist….judges….!!!!
GM:
“My choices on personal moral issues DO NOT limit the choices that others are free to make.”
I believe that once you have children your views on this will change. Citizens should always have a voice in what’s openly going on in our communities and have the ability to defend our families from exposure to immoral behavior.
What’s really obscene is that unelected judges of the supreme court took away our voices by giving such behaviour their special stamp of pan-Canadian approval. Why they couldn’t reserve judgement and leave regulation and control of sex clubs to individual communities? Why must Liberal social policy be forced on Canadian citizens to create a pseudo-european country in North America?
Social issues with moral implications should not be decided by elected officials who are not free or unwilling to vote the will of their constituency. Therefore the outcomes on such issues should be decided by the citizens themselves through referendum. At least that way voices of people that care will matter.
I disagree with the SCOC ruling that these commercial swinger’s clubs are legal, unless prostitution is legalized, and I believe it will be soon enough. The people going to these clubs are paying money to have sex. This is the legitimation of prostitution, pure and simple.
Prostitution is already legal in Canada. It has been legal for a very, very long time. Buying or selling sex is legal; communicating the transaction is not.
Martin,
I understand your concerns. I simply don’t trust judges, the government, “the community” as a whole, or “the majority” to make personal moral decisions for me. I expect them not to step on my rights, and I understand that it is my responsabiltiy to avoid interfering with theirs. But all of these groups, when given power over individual choices have been VERY wrong before, and left others to clean up the mess….
…which is why I am in favour of a minimal state that errs on the side of liberty.
I want these “swingers” to be free to make their own personal lifestyle choices, for the same reason you should be free to instill the values you feel are important in your family.
Freedom cuts both ways.
“Buying or selling sex is legal; communicating the transaction is not.”
OK, then why do undercover law enforcement authorities pose as prostitutes, or as those soliciting prostitutes? As consenting adults, real prostitutes and their real solicitors are engaging in the discrete exchange of money for sex in a private manner. Why do the legal authorities feel that it is necessary to bait and trap with false enticement and soliciting if selling sex is legal? It appears to me that our legal authorities are guilty of invasion of privacy.
Anyway, the only people that are going to benefit monetarily from these swingers clubs are the owners. This is a pimps dream, 100% profit.
Mark J: The reason they do is because soliciting is not legal. In effect what the current laws do is render street prostitution and brothels illegal, but keep prostitutes who stay off the street legal. “Escorts” who only visit their clients in their homes or at hotels (and do not work out of one fixed location) are not pursued by the police because
I’m not arguing that these sections of the Criminal Code are terribly consistent (they’re quite old), but that’s what they say.
Imagine…. maybe someday we will all find fulfillment within the course of our own lives, and no longer need to obsess about what other people are doing.
Swinger clubs will exist regardless of the law. These clubs have been part of an “underground” economy for a long, long time. Amazingly the moral standards, values, and fundamental decencies, essential to the maintenance of important social institutions, such as the family, are still intact. Giving kinky clubs legal status will not result in a sudden proliferation of these establishments, reason being, the market for this sort of thing is not huge. Few people engage in this kind of activity on a regular basis. Also, instead of wasting resources trying to police swinger clubs, the government can tax the clubs instead.
As for the issue of prostitution,
any club will serve that purpose. Prostitution has been around for pretty much forever everywhere, and always will, as long as, horny men have money, and obliging women need money.
Imagine…. maybe someday we will all find fulfillment within the course of our own lives, and no longer need to obsess about what other people are doing.
Swinger clubs will exist regardless of the law. These clubs have been part of an “underground” economy for a long, long time. Amazingly the moral standards, values, and fundamental decencies, essential to the maintenance of important social institutions, such as the family, are still intact. Giving kinky clubs legal status will not result in a sudden proliferation of these establishments, reason being, the market for this sort of thing is not huge. Few people engage in this kind of activity on a regular basis. Also, instead of wasting resources trying to police swinger clubs, the government can tax the clubs instead.
As for the issue of prostitution,
any club will serve that purpose. Prostitution has been around for pretty much forever everywhere, and always will, as long as, horny men have money, and obliging women need money.
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