Madam justice's 'harmless' swingers' clubs

Seemingly as a Christmas gift to Canadians, their Supreme Court last month informed them that from now on "swingers' clubs" will be legal in Canada, unless somebody can objectively prove that legally accepting them will "harm the proper functioning of Canadian society."

This decision, handed down four days before Christmas, acquitted a Montreal club called "l'Orage" (the Tempest) of operating "a common bawdy house." Eight hundred people paid for membership in l'Orage, plus an uncounted number of their "guests." The club functioned in a three-story business building, the first floor a bar, the second a "salon," and the third an "apartment" which, though it lacked a kitchen, had numerous mattresses strewn about the floor.

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There, enunciated Chief Justice Beverley McLachlin, consenting adults shared "consensual" group sex. In writing the majority decision, she helpfully detailed precisely what kinds of consensual group sex.

But in this decision, the court fundamentally changed Canadian law on sexual conduct. From now on, it ruled, "community standards" will no longer be the central criterion in determining what is or is not "indecent behavior." Instead, the amount of "harm" done will be determinate, and "the law" – meaning, of course, the court – will decide what is and is not "harmful" for Canadians.

The trouble with "community standards," wrote the madam chief justice, is to determine what they are. In the New Canada, this difficulty will be resolved by whether any display of sexual activity causes "formally recognized harm" to an individual or to the community, because "harm or significant risk of harm is easier to prove than a community standard."

"The words 'formally recognized' suggest that the harm must be grounded in norms which our society has recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning."

One test for "harm" must be whether the activity in question "predisposes others to anti-social behavior." But here "a real risk that the conduct will have this effect must be proved. Vague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behavior will not suffice. The causal link between images of sexuality and anti-social behavior cannot be assumed.

"Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear. What is required is proof of links, first between the sexual conduct at issue and the formation of negative attitudes, and second between those attitudes and real risk of anti-social behavior."

Two of the court's nine judges refused to sign on to the chief justice's proclamation. This "new approach to indecency," they wrote in a dissenting opinion, "is, in our view, neither desirable nor workable. It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency."

"In principle, we consider the change to the legal order proposed by the majority to be inappropriate, particularly because no valid justification is given for departing from the existing test. We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected."

They may dissent from the chief justice on more than just her legal opinion on bawdy houses. Her dissertations from the bench of late read more and more like academic lectures to the freshman class. ("I now turn to a more detailed consideration of …" etc.)

But then bestowing lectures upon deserving audiences around the world is a duty the chief justice has imposed upon herself as a further burden of office. She has lectured, for instance, in New Zealand and Australia on how Canada's judges must not be bound by the terms of the Charter of Rights and Freedoms. They must learn to see beyond the mere confines of such a document to the greater society that, being judges instead of mere politicians, they are so much more able to perceive.

The New Canada, in short, is to be ruled by a panel of seers – a 21st century version of the flawless "Guardians" of Plato's Republic – revered as founts of wisdom in their scarlet and ermine robes, declaring for us all what shall and shall not be "the proper functioning of Canadian society." And to think: Only yesterday they were just lawyers chasing ambulances and the subject of so many jokes.