The more, the merrier

How straight-laced are Quebeckers? One would have thought this was a silly-season question. And yes, the people of Quebec are called Quebeckers. In R v Labaye [2005] SCC 80 (21 December 2005) the Supreme Court of Canada had to decide whether acts of indecency included group sex by consenting adults in an environment where any spectators were also voluntary on-lookers. The larger a court, the more likely it is that there will be dissent. Here, the court split 7 – 2.

The majority held that in the circumstances the group sex was not indecent. What is remarkable about this is the complexity of the legal test for indecency, which was summarised at para 62 as:

"Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:

1. 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, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour; or
(c) physically or psychologically harming persons involved in the conduct, and

2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society."

The vetting of members of this private club (L’Orage Club, Montreal) meant, held the majority, that there was no such harm as was required by this test.

The minority placed less emphasis on the private nature of the club, and applied what had hitherto, in their view, been the traditional test, the community standards. Interestingly, they referred to JS Mill (para 105) as underpinning the majority’s emphasis on the need for harm, and they criticized this on the grounds that behaviour may be criminalised without there being an identifiable harm:

"In the case at bar, the offence relates to social morality. 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."

Noting that evidence indicated that only 2 to 5% of Quebeckers engaged in group sex (para 138), the minority concluded (para 153):

"Our analysis does not permit us to conclude that the Canadian community would tolerate the performance, in a commercial establishment to which the public has easy access, of group sexual activities on the scale of those that took place in this case."

The Canadian Charter of Rights and freedoms was not cited in this case, but it makes the rights and freedoms it guarantees "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (clause 1). Relevant Charter rights are (clause 2) freedom of conscience, thought, belief, opinion, peaceable assembly, and association. (And see the comparable provisions of NZBORA, s 5, 13, 14, 16, 17.) Even if the minority in Labaye is correct, and the Canadian community would not tolerate group sex in the circumstances in which it occurred in that case, the further question should be whether that intolerance is justified in a free and democratic society. The harm-based analysis applied by the majority surely has a role here.

A "companion case" was also decided yesterday by the same Court, with the same split in judges: R v Kouri [2005] SCC 81 (21 December 2005). Here, the question was whether group sex in a bar was indecency, where entrance was restricted to people who agreed that they were "liberated". Incongruously, entrance was also restricted to "couples", a rather charming nod in the direction of propriety. Important for the majority was the effective restriction of entry to those who knew very well what they were in for.

I should add a technical point. In Kouri, the minority judges dissented by using the same reasoning they employed as the minority in Labaye. Strictly speaking, the law was established in Labaye, and the minority were compelled to follow it. If they were to reach a conclusion different from that of the other Judges, they should have done so by applying lawful reasoning. For example, they may have decided that there was sufficient social harm arising from the relevant conduct to make it criminally indecent. Alternatively, and admittedly, impractically, the minority would should have required argument on whether the law as established in Labaye should be changed.