Review of the Law of Indecency and Nudity 1999



THE FEASIBILITY OF MUNICIPAL REGULATION

As mentioned above, it may be more appropriate for legal means other than the criminal law to deal with the problem of local concerns over having to confront the public display of women's breasts in areas where, given the day-to-day activity, one would not ordinarily expect to be confronted by such behaviour. This requires consideration of the constitutional (i.e. division of powers) legality of whether a province can delegate to a municipality the power to regulate standards of dress required in various public locations within that municipality.

The power to legislate in relation to criminal law is exclusively within the jurisdiction of the federal Parliament (s.91(27) of the Constitutional Act, 1867). Provincial Legislatures have power to legislate over the areas of:
  • property and civil rights" (s.92(13)), or
  • matters of a "merely local and private nature in the Province" (s.92(16)).
In relation to this division of powers, there are three important points that need to be made:

1.  Since the decision by Rand, J. in Margarine Reference42 this power has been understood to relate to "a body of prohibitions" enacted in relation to a public purpose; 'public purpose' includes: public peace, order, security, health, and morality. The list is not exhaustive nor is it the case that legislation in relation to any one of these public purposes necessarily makes the legislation in question criminal law.43

2.  The category of morality is not coextensive with the field of criminal law. In Nova Scotia Board of Censors v. McNeil44 , the Supreme Court of Canada was asked to determine the validity of provincial legislation that prevented the film, Last Tango In Paris, from being shown. In deciding that the legislation was valid provincial law, rather than criminal law, Ritchie, J. made the following comment:
  • I share the opinion expressed in this passage that morality and criminality are far from coextensive and it follows in my view that legislation which authorizes the establishment and enforcement of a local standard of morality in the exhibition of films is not necessarily an invasion of the federal criminal field. (page 692)45
3.  The "pith and substance" of legislation must come within either a federal or provincial head of power. 46But the fact that, in pith and substance, some piece of legislation comes under one jurisdiction's head of legislative power does not mean that, under another aspect of it, it cannot fall under some head of power belonging to the other jurisdiction. 47Thus, both the federal Parliament and a provincial legislature (or municipality) could deal with a certain subject matter, eg. public nudity, and both sets of laws could be valid. Where there is a direct conflict between the two sets of laws, the federal laws would be paramount. 48However, in the absence of direct conflict, both sets of laws can coexist.

The question then is whether municipal regulation designating standards of dress (specifically nudity or partial nudity) can be construed, in pith and substance, as coming under one of the heads of legislative power belonging to the provincial legislature?

It is submitted that a provision controlling the appearance of nudity or partial nudity on municipal streets, parks or other public spaces could be framed as being a matter of property and civil rights (s.92(13)) or as a matter of a merely local and private nature in the Province (s.92(16)). The purpose of the provision would be to regulate the use of municipal areas in order to address one or more of the following concerns:
  • * nuisance
  • * street congestion and disorder
  • * the exposure of children to behaviour contrary to the values their parents are trying to instill
  • * ensuring the ability of persons within the locality their right to enjoy their property.
All of these objectives have been found by the courts to be a proper basis for a province or municipality to pass legislation or by-laws even though the subject-matter may also be construed as moral in nature or overlaps with some provision of the Criminal Code.

Clothing worn by employees in massage parlours

For example, the courts have upheld provincial legislation that dictates the type or amount of clothing worn by employees in massage parlours. In Cal Investments Ltd. v. Winnipeg, 49the Manitoba Court of Appeal considered a municipal by-law requiring a person working in a massage parlour to "wear a non-transparent outer garment from neck to knee". The law was challenged on the basis that it went further than mere regulation of massage parlours and in its effect constituted a prohibition of such parlours and intruded upon the federal legislative power over criminal law. The court relied on the analysis used in MacNeil (supra) and held that "in pith and substance the by-law in question was designed to regulate massage parlour trade". To the extent that it dealt with morality, the court held that it was not legislation with respect to criminal law and therefore was not invalid 50

Similarly, in Re Moffat and City of Edmonton, 51 the constitutionality of a by-law which set a standard of dress for persons engaged in providing a body rub was challenged. The court relied upon the decisions in Cal Investments and MacNeil and held that if, city council may deem this to be a regulation or restriction reasonably necessary to prevent what might be normally a body-rub becoming something deleterious to health or morals, I am unable to see how this by itself goes so far as to invade the criminal field. (page 109)

Clothing and relationship with audience


The courts have also upheld provincial or municipal regulations that stipulate the type and amount of clothing worn by entertainers and the relationship that they can have with the audience. In Rio Hotel (supra) a challenge was issued against provincial legislation that authorized conditions being imposed on a liquor licence specifying the degree of nudity acceptable as well as rules for staging events presupposing the removal of clothing. It was argued that the Criminal Code included provisions dealing with nudity and that the licensing requirements imposed by the Liquor Licensing Board were an infringement of the federal criminal law power. Writing for a majority of the Supreme Court of Canada, Dickson, C.J. held that the legislation was a proper exercise of provincial legislative power because it was related to property and civil rights as well as matters of a purely local nature.

The purpose of the legislation was to "regulate the forms of entertainment used by the owners of licensed premises as marketing tools to boost sales of alcohol". Dickson, C,J, noted that while the provisions overlapped somewhat with the Criminal Code provisions, there was no direct conflict between the licensing conditions and the Criminal Code provisions dealing with nudity. Also, no penal consequences resulted from a breach of the licensing conditions whereas the Criminal Code provisions were punitive in nature. The provincial and federal provisions were not inconsistent and could operate concurrently.52

Distribution of adult videos

The courts have upheld provincial legislation regulating the distribution of adult videos. In It's Adult Video Plus Ltd. v. British Columbia (Director of Film Classification), 53 the British Columbia Supreme Court upheld a provincial law requiring all adult films to be submitted for classification before distribution, and to allow only approved films to be distributed. The court held that the purpose of the law was the regulation of the dissemination of pornographic films, in order to:
  • suppress conditions giving rise to the commissions of crimes;
  • establish production and quality controls for the industry within the province;
  • protect residents, especially children, from "surreptitious distribution of prohibited materials".
Display of erotic publications except under certain conditions

The courts have upheld provincial legislation regulating the display of erotic publications even going so far as prohibiting them except under certain conditions. In Information Retailers Association of  Metropolitan Toronto v. Metropolitan Toronto, See 54 a challenge was made against provincial legislation that authorized municipalities to license and regulate premises where books or magazines were sold which appeal to "erotic or sexual appetites or inclinations". The by-law in question required that adult books be displayed 1.5 metres above the floor, and that only the name of the publication should be visible.

The Ontario Court of Appeal found the legislation to be within the provincial head of legislative power under s.92(13) since it authorized the regulation of a permitted business and did not go so far as to prohibit the business. The principal intent of the legislation was "to restrict physical and visual access by children to certain publications, particularly what are known as "adult" or "skin" magazines". On the issue of morality, the court stated:

it is well established that the presence of a moral element in the purpose does not of itself render the by-law invalid as an improper exercise of federal criminal law jurisdiction...The pith and substance of the impugned by-law was the regulation of a permitted business...Morality is not an independent constitutional value and may be regulated either by Parliament or a Legislature depending on the characterization of the legislation as a whole. A by-law aimed at regulating a trade or business in order to protect children has, in my view, as its "true object, purpose, nature and character" matters within provincial legislative authority and is not to be declared invalid simply because its purpose may extend to moral considerations. (pages 462-463)

The court found no conflict between the provisions of the by-law and the obscenity provisions of the Criminal Code because the two laws served totally different purposes.

Nuisance control and crime prevention

The courts have upheld provincial legislation controlling the operation of disorderly houses. In Bedard v. Dawson, See footnote 55 55 legislation passed by the province of Quebec was challenged. The legislation gave a right to private citizens to apply to the court for an injunction to close down a premises because it was being used as a disorderly house. The Supreme Court of Canada held that the legislation was valid because the province had the legislative power to restrain nuisances. Idington, J. stated:
  • [The province has] the power called in question herein so far as the relevant facts require. Indeed, the duty to protect neighbouring property owners in such cases as are involved in this question before us renders the question hardly arguable. There are many instances of other nuisances which can be better rectified by local legislation within the power of the legislatures over property and civil rights then by designating them crimes and leaving them to be dealt with by Parliament as such. (emphasis added, page 684)
Anglin, J. added:
  • I am of the opinion that this statute in no wise impinges on the domain of the criminal law but is concerned exclusively with the control and enjoyment of property and the safeguarding of the community from the consequences of an illegal and injurious use being made of it - a pure matter of civil right. In my opinion in enacting the statute now under consideration a legislature exercises the power which it undoubtedly possesses to provide for the suppression of a nuisance and the prevention of its recurrence by civil process. (page 685)56
Street control
The courts have also upheld municipal regulations controlling the use of the streets. In A.G. (Can.) and Dupond v. Montreal,  57the Supreme Court of Canada upheld the validity of a municipal by-law which prohibited the holding of "any assembly, parade or gathering in the public domain of the City of Montreal for a time-period of thirty days". Beetz, J. in the majority decision, stated that the by-law dealt with matters of a local character and was regulatory in nature. The preventative nature of the by-law, and the fact that it was a temporary measure were an important part of the finding. However, the court held that the province had the legislative power to suppress conditions likely to favour the commission of crime.

Of course, not every provincial or municipal enactment has been accepted as valid by the courts. In a trilogy of decisions, the Ontario Court of Appeal held municipal by-laws to be invalid where the by- laws attempted to control the standard of dress of persons providing service or entertainment in adult establishments (bars, clubs, body rub parlours). 58However, in Rio Hotel, Estey, J. in a separate concurring judgment, after discussing these cases, stated that: "In my respectful view, the dispositions in Koumoudouros, Nordee and Sherwood were in error." (page 677) Indeed, more recently, in the case of Re Ontario Adult Entertainment Bar Association and Municipality of Metropolitan Toronto, 59the Ontario Court of Appeal followed Estey, J. in Rio Hotel and held that these three cases were now overruled.

In Re Ontario Adult Entertainment, the court was asked to consider the validity of a municipal by-law that prohibited close-contact dancing ("lap dancing") in adult entertainment establishments. The court held the by-law to come properly within provincial legislative power by addressing health, safety and crime prevention concerns. Although an ancillary effect of the by-law touched on matters of morality, the court held, following Rio Hotel:
  • provinces have the right under the division of powers under the Constitution Act, 1867, to enact regulations in the nature of police or municipal regulation of a merely local character to preserve in the municipality, peace and public decency, and to repress drunkenness and disorderly and riotous conduct. (page 167)
Finally, the Supreme Court of Canada's decision in R. v. Westendorp 60must be mentioned. In that case, a by-law enacted by the city of Calgary was being challenged. The by-law created an extensive regulatory scheme relating to the use of city streets. However, one section dealt with prostitution and it prohibited being on a street for the purposes of prostitution. The court declared this section of the provision to be invalid in that it was a colourable attempt by the city to prohibit prostitution, which was clearly within the domain of criminal law. The court found the section to be unconnected with the rest of the by-law, and noted that the nuisance associated with street prostitution was singled out in being prohibited whereas other equal street nuisances were not even mentioned. Therefore, it was evident that the city was attempting to prohibit and punish street prostitution under the guise of its power to control local nuisances, prevent crime, maintain public order and use of the streets.

CONCLUSION

It should be fairly clear from the above cases that a municipality can indeed create a by-law that would regulate the standard of dress controlling nudity or partial nudity from occurring in various public locations within its streets and parks. But not every by-law passed by a municipality controlling nudity will be valid. For example:
  • a municipality cannot pass a by-law dealing with the subject-matter of the public appearance of nudity that is in direct conflict with any of the related provisions of the Criminal Code;61
  • a municipality cannot pass a by-law the aim of which is to punish people from appearing nude in public.
What this means is that a municipality would need to create a fairly well-focused by-law that was clearly aimed at preventing nuisances, maintaining public order and keeping children from being exposed to nudity or partial nudity. This kind of by-law would probably not contain a blanket prohibition on nudity or partial nudity, nor should it establish an offence for appearing nude or partially nude. If the by-law regulated standards of dress in certain public areas (eg. public swimming pools, parks, beaches), especially areas where children would reasonably be expected to be present it is more akin to matters of property and civil rights or of a purely local nature than to criminal law. Moreover, if the regulation gave a power to prevent the person from continuing to be present at these locations in such a state, rather than creating a punishable offence, then the by-law would appear "in pith and substance" to be linked to proper local objectives. It is submitted that such a by-law is not aimed at punishing indecency (especially where the local standard of indecency is different from that contained in the Criminal Code) but at controlling behaviour within the locale that a majority of the members of that community wish to establish for themselves.

This kind of by-law, for example, might allow a municipal official present at a swimming pool to request someone not properly dressed to take such steps as would comply with the dress standard (eg. to ask a topless woman bather to put her top on). If the person refused, that person could then be asked to leave the swimming pool. At this point, a refusal to leave may result in the person infringing the provincial trespass legislation. But the by-law itself would not be aimed at punishing the person; rather its aim is directed at controlling how the person would be dressed at that location as a function of legitimate local concerns and objectives.

Depending on the municipality and its local concerns (especially the community's views on standards of dress in public areas), by-laws could be created that would allow certain areas to be used where dress standards might be relaxed, "zones of tolerance", and this could be made clear to members of the public so that no one who did not wish to confront this activity, or have their children exposed to it, would need to enter these zones. 62

It should be clear that the criminal standard for indecency allows Canadians to prevent other Canadians from seeing or doing what they would like to in public. This is a strong control over the actions of others and, as stated above, it may be that, in order to comply with the Charter, such penal restrictions on actions that persons willingly want to experience may only be justified on the basis of the harm it causes.

However, local by-laws regulating standards of dress in certain public areas are designed not to prevent Canadians from seeing something because other Canadians will not tolerate them seeing it, but because the members of that community have decided that they themselves do not want to have to be exposed to this behaviour, or do not want their children being exposed to it.

It goes without saying that the criminal law is a blunt instrument for dealing with problems of this nature. As the courts have recognized, this kind of problem is better dealt with by local regulation. It is submitted that if a municipality, in good faith, attempted to regulate standards of dress in public areas this would be considered by the courts as a proper exercise of legislative power belonging to the province.

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