Swingers clubs that feature group sex and swapping of partners are legal because they cause society no harm, the Supreme Court of Canada said Wednesday in a ruling that rewrote the definition of indecency.

The 7-2 majority said the new determining factor will be whether the sexual behaviour in question causes harm, replacing the previous yardstick that the act must offend community standards of tolerance. "Moral views, even if strongly held, do not suffice," wrote Chief Justice Beverley McLachlin. "As members of a diverse society, we must be prepared to tolerate conduct of which we disapprove."

In a biting dissent, justices Louis LeBel and Michel Bastarache accused the majority of turning their backs on public morality and the established legal order. The majority decision could lead to "anti-social behaviour," they wrote. "This new harm-based approach strips of all relevance the social values that the Canadian community as a whole believes should be protected," said the lengthy dissent. "The explicit sexual acts performed in the accused's establishments clearly offended the Canadian community's standard of tolerance."

The ruling overturned the conviction of Montrealer Jean-Paul Lebaye. He was fined $2,500 for running a "common bawdy house" for the "practise of acts of indecency" after police busted his club, L'Orage, six years ago. At L'Orage, members joined for about $200 a y ear after an admission interview, and paid a separate fee each visit. To gain entry to the group-sex room on the club's third floor, members punched an access code onto a keypad, according to court records.

"Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," McLachlin wrote. "No one was pressured to have sex, paid for sex or treated as a mere sexual object for the gratification of others." The court also ruled in a companion case, giving a seal of approval to the defunct Coeur a Corps swingers club in Montreal, where the rules were less strict. Members were merely questioned at the door before being admitted. Group sex took place behind a thin black curtain on the club's main floor.

The Supreme Court decision settles conflicting rulings in the Quebec Court of Appeal, one that sided with Kouri and the other that convicted Lebaye. There are about 35 swingers clubs in Canada, according to the North American Swing Club Association, including several in the Lower Mainland.

Reive Doig is an organizer of Vancouver Dungeon, a sadomasochistic "play party" held once a month at different locations in the Lower Mainland. The main event features "whips and chains" but no sexual contact, Doig said. But organizers do offer a "red-light room" where people can have sex with each other. Doig said the legality of the room was always in question -- something he's not worried about anymore. "We'll certainly be looking at if that's something we want to expand in light of this ruling."

Swingers clubs in the Lower Mainland currently operate below the radar, said Doig, with many disclosing their location only to members. Wednesday's ruling will encourage such clubs to become more open, Doig predicted. "I would hope that it means there will be an opportunity to have permanent facilities here in Vancouver. There are a lot of people who choose to engage in this lifestyle and it's always been something that's been in the closet."

Terry Gould, Vancouver-based author of The Lifestyle: A Look at The Erotic Rites of Swingers, agreed the decision will change the nature of B.C. swing clubs. "The impact of this decision is going to be huge," he said. "You're [now] likely to see clubs opening up in commercial areas. . . . They will now have street addresses that people are aware of." Wednesday's ruling will also benefit gay bath houses, predicted Joseph Arvay, a lawyer for the B.C. Civil Liberties Association.

"It certainly indicates to me that gay bath houses never have to be worried anymore about being harassed or prosecuted under the law," he said.

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Original published here.

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THE NEW CRITERIA

The Supreme Court of Canada has struggled for decades to define indecency, in the absence of a definition in the Criminal Code.

Previous Measure: 'Community standards.' Now ruled to be too subjective to be useful.

As of Wednesday: 'Harm' is the new criterion. Chief Justice Beverley McLachlin rules harm is an objective term that means at least one of the following:

- Interference with a person's autonomy or liberty.

- Leading others to anti-social behaviour.

- Causing physical or psychological harm 'of a degree incompatible with the proper functioning of society.'

© (c) CanWest MediaWorks Publications Inc.

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