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THE ONTARIO COURT OF APPEAL DECISION IN R. v. JACOB
The facts of the case are set out in the Introduction to this paper. A great deal of the decision in the Court of Appeal was taken up with the question of whether an act must have a sexual context in order to be indecent. This is the key question on which the majority and dissent disagreed, although both judgments agreed in the result that the act in question, appearing topless in the streets of the town, was not an indecent act.
The crux of the decision concerns two findings: the trial judge did not apply the correct test and, in any event, there was no evidence of harm.
As far as the first finding is concerned, the trial judge held that the act of going topless in the town exceeded the community's standard of tolerance, because women generally have not appeared publicly in a topless state, nor would the newspapers reporting on the event print a picture of the women in a topless state. This, according to the trial judge, showed what the community standard of tolerance was, namely that public display of toplessness by a woman would not be tolerated. 33
In commenting on the trial judge's application of the community standard of tolerance test, Osborne, J.A. stated:
- what the trial judge did was measure the appellant's choice of apparel and conduct against what the trial judge concluded Guelph women would deem to be appropriate for themselves. The trial judge seems to me to have applied a test similar to the test rejected by this court in R. v. Giambalvo.
- In my opinion, both the trial judge and the summary conviction appeal court judge erred in law in applying the wrong test to determine whether the appellant's conduct was indecent. They used a test of acceptance based upon the trial judge's assessment of how women chose to act, as opposed to what the contemporary national community would tolerate. (page 16)
...there is no evidence of harm that is more than grossly speculative. All that the trial judge had before him was some evidence indicating specific individuals' lack of acceptance of the appellant's choice of clothing. There was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her. (page 16)34
The conclusion reached by the Court of Appeal on how the community standards test should be applied is, of course, based on the decisions of Butler and Tremblay as well as the Ontario Court of Appeal's decision in Mara and East (the Supreme Court's decision not yet having been made, but nevertheless approving the Ontario Court of Appeal's decision). In all of these cases, the issue of the community's standard of tolerance is ultimately a question of the harm caused by the acts, and more particular whether the acts were degrading and dehumanizing. As such, the state of the law is now that both indecency and obscenity are determined by the potential harm that could result from the act in question.