(with whom Major, Binnie, Deschamps, Fish, Abella and Charron JJ concurring)
The Crown appeals from the decision of the Quebec Court of Appeal overturning Mr. Kouri’s conviction of keeping a “common bawdy-house” for the “practice of acts of indecency” under s. 210(1) of the Criminal Code, R.S.C. 1985, c. C-46. The appeal was heard together with R v Labaye, 2005 SCC 80. Both cases require elaborating the test for criminal indecency and applying it to the operation of clubs established to facilitate the practice of group sex activities. A more detailed discussion of the test for criminal indecency can be found in the companion case of Labaye. Following its application to the present set of facts, I conclude that the acts alleged were not indecent, and that the judgment of the Quebec Court of Appeal acquitting the respondent should be affirmed.
The respondent operated a licensed bar called “Coeur à Corps”, on the first floor of a building in Montréal-Nord. The second floor was occupied by a strip club, “Cabaret Chez Mado”, also owned by the respondent. “Coeur à Corps” was advertised in the Journal de Montréal as a meeting place for [Translation] “liberated couples only”, but no further details were given as to the nature of the bar and the activities taking place therein. A similar advertisement on the Internet described the atmosphere of the bar as “warm and cozy”.
“Coeur à Corps” had been in existence as a meeting place for liberated couples since 1985. It was only in 1996 that the police received a complaint and started an investigation into the potential commission of indecent acts. Undercover police officers attended at the bar five times between September and November 1996, and on three further occasions between January and March 1997. Two search warrants were issued and executed on the premises on November 16, 1996 and March 16, 1997, at which times the police arrested 62 and 95 persons, respectively, including both clients and employees. The respondent was charged with two counts of keeping a bawdy-house contrary to s. 210(1) of the Criminal Code.
According to the evidence at trial, access to the bar was only open to couples and a doorman asked prospective clients if they were a “liberated couple”. If the couple answered yes, they were permitted to enter after paying a $6 fee. The establishment had both a seating area and a dance floor. Every half hour, a black, translucent curtain closed around the dance floor while slow music played for 8 to 12 minutes. At these times, up to seventy people, comprising almost eighty percent of the clientele, would be on the dance floor engaging in group sex activities. These included sexual caresses, masturbation, fellatio and penetration. While the curtain served to separate the dance floor from the rest of the premises, it did not prevent observation of the sexual activities from the seating area.
There was no specific evidence that anyone entered the bar not knowing what to expect. The manager of the club, Mr. Lacroix, testified that he would not admit any couple who did not confirm that they were a liberated couple or any couple who were simply curious as to what was going on inside. He further stated that he gave orders to this effect to the doorman, when he was not himself present at the door. At the same time, the testimony left open the possibility that there might have been exceptions to this practice. Mr. Lacroix in fact indicated that he had not asked the undercover police officers if they were a liberated couple, but knew that they had come to the bar twice. Once inside, the police officers observed one incident where a woman became angry with her partner and the couple left the premises shortly thereafter. Apart from this incident, there is no further suggestion that anyone was unwillingly or unwittingly exposed to the acts committed in the club.
3. Judicial History
The main issue at trial was whether the respondent had the requisite mens rea, or criminal intent, to be found guilty of keeping a bawdy-house. On the issue of indecency, the trial judge, following a review of the case law, simply stated that [Translation] “the defence has not argued this notion and the Court easily comes to the conclusion in this case that these are indecent acts committed in a public place in the sense of sections 150 and 197 of the Criminal Code”. On the issue of mens rea, he found that Mr. Kouri had been wilfully blind as to the indecent activities going on in his establishment, and that this sufficed to support a conviction.
The majority of the Quebec Court of Appeal allowed the appeal and set aside the conviction, on the ground that the acts at issue did not constitute criminal indecency ((2004), 191 C.C.C. (3d) 42). Otis J.A. concluded that only activities posing an objective risk of social harm should be penalized and the sexual activities in this case did not give rise to such a risk. While they were conducted in a public place, this was [Translation] “one where access was restricted and reserved for this purpose, without anyone being compelled to participate or to witness the sexual acts, nor to be used as a sexual object for the gratification of others” (para. 47).
Rochon J.A., in dissent, would have upheld the respondent’s conviction on the basis that the activities at issue went beyond the rules of conduct necessary for the proper functioning of society. The risk of harm was difficult to measure concretely, but was not necessarily insignificant. More specifically, there was, in his view, [Translation] “clearly a loss of meaning or a trivialization of sexual relations and a confusion of the boundaries as to what is or is not possible to do in society” (para. 83).
4.1 The Test for Criminal Indecency
As more fully discussed in the companion case of Labaye, Canadian law does not reduce indecency to what a judge views as morally corrupt. The law has evolved toward an objective test of indecency based on the community standard of tolerance, which, in turn, has come to depend on the risk of harm entailed by the impugned activities. Criminal sanction should only attach to render obscene or indecent materials or acts that create a significant risk of harm, incompatible with the proper functioning of society.
The present appeals require an elaboration of the structure of the inquiry in finding criminal indecency. Based on the guidelines emerging from R v Butler,  1 S.C.R. 452, the analysis should proceed in two steps. Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:
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:
confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
predisposing others to anti-social behaviour; or
physically or psychologically harming persons involved in the conduct, and
That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.
4.2 Application of the Test
The first question is whether the conduct at issue harmed or posed a significant risk of harm to individuals or society.
As discussed more fully in the companion case of Labaye, the first harm the concept of indecency targets is interference with the autonomy and liberty of members of the public through unwanted exposure to the conduct at issue. The risk of such harm depends on the degree to which unwilling viewers were exposed to the conduct. Where the acts took place, the manner in which they took place, and the nature of the audience are relevant factors to consider: R v Tremblay,  2 S.C.R. 932.
In this case, the Crown presented no evidence of anyone witnessing this conduct against his or her will, or of anyone entering the establishment not knowing what to expect. The majority of the Court of Appeal stressed the trial judge’s findings of fact that only couples were allowed access, and this only after confirming that they were a liberated couple: [Translation] “It clearly appeared that access to the premises was restricted and that the warning given was clear when put in context” (para. 45 (C.A.)). The majority went on to point out that there was no evidence of anyone feeling uncomfortable with the operation of the bar or the activities that took place inside and that the sexual activities were partially shielded by the black curtain, [Translation] “permitting those who did not want to witness it to exclude themselves from it” (para. 46).
Rochon J.A., in dissent, did not dispute the existence of the control mechanism. His view was essentially that the sexual activities at issue should not be permitted to take place in a public establishment [Translation] “notwithstanding all the measures which may be taken to restrict the clientele ‘to liberated couples’ only” (para. 78). In submissions before this Court, the Crown did not ask us to go this far, acknowledging that there is no rule that sexual activity in a public place automatically violates the autonomy and liberty of members of the public.
The question at this stage is therefore whether the evidence establishes a significant risk of harm to the autonomy and liberty of members of the public. This requires a contextual assessment of the risk of harm to those who may be involuntarily confronted with this conduct. The control mechanisms designed to put people on notice and ensure an informed choice to enter the premises are vital to this assessment. The question is whether they adequately restricted access to people informed about the nature of the place and willing to observe or participate in the activities taking place therein. In order to show that acts are indecent, the Crown must establish beyond a reasonable doubt that the control mechanisms were insufficient to ward off the risk of unwanted exposure. For the reasons that follow, I conclude that the evidence in this case falls below the required criminal standard of proof.
The Crown argues that the black, transparent curtain that bounded the dance floor where sexual activities took place was not an adequate control mechanism. I agree. The evidence is clear that one could see through the black curtain and across the dance floor. Indeed, this was one of the ways the manager was expected to monitor the activities and curb excessive behaviour. Although the curtain served to mark the boundaries within which the allegedly indecent acts could take place, it is clear that it would not have effectively shielded them from view by an unsuspecting or unwilling witness. The control mechanism was not the curtain, but the procedures at the door.
Like the majority of the Court of Appeal, I am satisfied that the controls at the door, put in context, were sufficiently clear and comprehensive. Only couples were admitted. The club’s policy required the doorman to ask each couple whether they were “liberated”. The exterior of the building displayed large posters of partially undressed dancers. All this provided ample indication that sexually explicit activity was to be expected inside.
The Crown argues that there was no specific warning as to the actual nature and extent of the activities engaged in on the dance floor. It is true there were no express warnings. No sign proclaimed: “Caution, you may see sexual activity inside”, nor did the doorman so advise. However, it is difficult to conceive that a couple which passed the explicit sexual depictions on the exterior walls of the buildings and answered affirmatively to the query that they were “liberated”, would not realize they were entering a place where sexual activity might occur.
The Crown also argues that it is not clear that the doorman posed the question about being a “liberated couple” to each and every couple seeking access to the bar, relying on his apparent failure to question investigating officers. This deficiency in the entry policy is confirmed, the Crown argues, by the evidence that on one occasion, a woman became upset with her partner and left the premises.
The fact that a woman became upset with her partner and left the premises does not permit the inference that she was unprepared for what she saw; she may have been upset for any number of reasons. Moreover, the incident is open to the competing interpretation that this was a member of the public who voluntarily chose to enter the establishment, and only subsequently came to regret that choice. The apparent failure to ask the investigating officers if they were a liberated couple, while more troubling, is nevertheless insufficient to displace the evidence that the practice was to ask each new couple if they were liberated. The doorman testified that any lack of questioning might reflect the fact that he had seen the couple before. Whatever the case, it is for the Crown to establish significant risk of harm beyond a reasonable doubt. Taken in total, the evidence of a risk of unwanted confrontation is at best inconclusive and incapable of meeting that standard.
The trial judge, after considering all the evidence, found as a fact that only couples who confirmed they were “liberated” were admitted to the club. The majority of the Court of Appeal confirmed that: [Translation] “It clearly appeared that access to the premises was restricted and that the warning given was clear when put in context” (para. 45). The evidence amply supports these conclusions. It follows that the Crown’s argument that harm resulted from insufficient steps to ward off the risk of unwanted exposure, cannot succeed.
Moving to the second type of harm, there is no evidence of inducing anti-social attitudes through demeaning, abusive or humiliating treatment of any individual or group. As in the companion case of Labaye, no one was pressured into sex, paid for sex, or treated as a mere object for the sexual gratification of others. On the present set of facts, the commercial aspect of the respondent’s operation is hardly relevant to this type of harm. The entrance fee was not paid by some to secure the sexual services of others. It merely enabled all the customers to gain access to the bar and to equally participate in the activities taking place therein. As such, the payment of a fee may lower one’s moral estimation of the activities at issue, but it is not helpful in seeing how they can be a source of attitudinal harm through encouraging anti-social behaviour.
Finally, there is no suggestion of physical or psychological harm to the participants. Again, the only apparent concern is the health risk from engaging in these activities without adequate protection. However, as discussed in Labaye, this type of risk is conceptually and causally unrelated to indecency and cannot be an independent basis for a finding of criminal indecency.
The absence of proof of harm or significant risk of harm makes it unnecessary to discuss the subsequent step of the inquiry into criminal indecency. I merely note that this is not a case of effectively removing the possibility of choice on the part of others as to how they go about their daily business without interference from what they see as deeply offensive conduct. Given this degree of choice, it is difficult to see how the activities at the club can be seen to have caused harm incompatible with the proper functioning of society.
I would dismiss the appeal and affirm the decision of the majority of the Quebec Court of Appeal to enter an acquittal.
Bastarache and LeBel JJ
This appeal has been brought to determine whether the impugned sexual acts were indecent and whether the respondent was guilty of keeping a common bawdy‑house within the meaning of s. 210(1) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C”).
Our colleagues conclude that the sexual acts in the instant case were not indecent. They base their conclusion on the approach they have developed in R v Labaye, 2005 SCC 80, which is based exclusively on the concept of social harm. In the opinion of the majority, the sexual acts in this case did not result in serious social harm that would be incompatible with the proper functioning of our society by, for example, predisposing its individual members to act in an anti‑social manner.
Although we respect their opinion, we disagree with it. Based on the contextual approach we have developed in our reasons in Labaye, we conclude that the impugned acts in the instant case were indecent because they clearly offended the Canadian community standard of tolerance. Our opinion is not based exclusively on the concept of harm. Harm is indeed an important factor to consider in establishing the level of tolerance, but it is not determinative. In our view, because of the context in which the acts occurred, the respondent’s establishment was a common bawdy‑house within the meaning of s. 210(1) Cr. C.
We agree generally with the majority’s description of the facts. We note, however, that the description minimizes the impact of two facts that are relevant to a contextual determination of indecency: the commercial nature of the premises and the ease with which any member of the general public was able to gain access to the club and witness the sexual acts that took place on the dance floor. These two contextual factors, and their application to the facts of the case at bar, will be discussed in greater detail in our analysis.
As we explained in greater detail in our reasons in Labaye, only one question need be answered in order to establish indecency and determine whether a place is a common bawdy‑house: Do the impugned acts offend the standard of tolerance of the contemporary Canadian community, having regard to the place and context in which they occurred? This analysis reflects the view that there are, inter alia, appropriate restrictions of time (such as the time of day) and place where the performance of sexual acts is concerned.
The approach proposed by our colleagues replaces the community standard of tolerance with a test that treats harm as the sole basis of indecency rather than as a criterion for determining the community’s level of tolerance. In Labaye, we showed that whether or not serious social harm is sustained has never been the determinative test for indecency and that social harm cannot take the place of a contextual analysis of the Canadian community standard of tolerance without completely transforming the concept of indecency and rendering it meaningless.
We consider it essential to continue applying the original test for indecency, which focusses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance. Regard must also be had to the fact that there may be a form of social harm that results from the failure to meet the minimum standards of public morality. Furthermore, the adoption of a vague concept of incompatibility with the “proper functioning of society” or of predisposing others to anti‑social behaviour must be avoided. This is plain from the analysis of s. 210(1) Cr. C., and from the need to establish the standard of tolerance based on an objective, contextual analysis of the sexual acts.
The establishment of the standard of tolerance is based on two main factors: the nature of the impugned acts and the context. In considering the nature of the acts, it must be asked whether they are exceptional in comparison to other acts that are accepted and that are performed in a similar context. The more exceptional the acts, the more likely they are to exceed the community’s threshold of tolerance, particularly if they have dehumanizing, degrading or demeaning aspects.
In analysing the context, the places where the acts were performed and the circumstances in which they occurred must be considered. A number of factors are involved in this contextual analysis:
the private or public nature of the place;
the type of participants and the composition of the audience;
the nature of the warning given regarding the acts;
the measures taken to limit access to the place;
the commercial nature of the place and the acts;
the purpose of the acts;
the conduct of the participants; and
the harm suffered by the participants.
This list is not exhaustive.
The fact that no spectators or witnesses were present when the sexual acts occurred does not preclude a finding of indecency. Whether a place is public does not depend on the presence of witnesses. To adopt the contrary position would amount to accepting that even demeaning sexual acts, including in particular acts capable of causing physical or psychological harm to the participants, performed in a place to which the public has access would not be indecent provided that there were no witnesses or spectators, but only a large number of participants. This result is unacceptable, as we showed in Labaye.
Whether a place is private or public must instead be determined by considering a continuum of situations that will vary with the degree of privacy involved, and from which the tolerance of society in respect of various sexual practices can be ascertained in light of the nature of the acts and the context in which they are performed. For this reason, an analysis based on a simple dichotomy between purely private and purely public premises must be avoided. The recognition of a general class of acts based on the concept of “relative privacy” must also be avoided. The degree of relative privacy in each case is not on its own sufficient to support an appropriate assessment of the context from which it can be concluded that acts are indecent.
Voluntary consent by the participants is not a determinative factor either, since the fundamental question in determining whether certain acts are indecent involves deciding what Canadians will tolerate or agree to other Canadians doing, having regard to the place and the context. The participants’ level of tolerance is not what must be considered. Freedom and autonomy of action does not rule out the moral judgment that the community might form regarding sexual practices that take place in certain places and contexts. Absence of consent may nevertheless play a role in determining that behaviour is dehumanizing, degrading or demeaning, and it would then have a negative impact on the level of tolerance.
As well, taking the commercial nature of the place and the acts into account may assist in establishing the Canadian community’s level of tolerance for the impugned acts. It is well established that the association of sexual acts with a commercial transaction has a negative impact on Canadians’ tolerance, because the persons involved in this type of transaction are generally exploited and experience a loss of dignity or autonomy. The commercial exploitation of sexual acts thus impairs the values of our society, such as the equality, liberty and dignity of the individual.
The risk of harm to participants is still relevant in a contextual analysis. In some cases, there will be a need to consider the risk of spreading sexually transmitted diseases. If this risk is real, it will have a negative effect on the standard of tolerance where there is a systematic absence of protective measures.
Lastly, even if no harm as understood by the majority is established, there may still be a form of social harm resulting from a failure to meet the minimum standards of public morality, as, for example, where exceptional sexual acts are performed in a public place. If such harm is established, it can be concluded that the standard of tolerance has been offended.
4. Application of the Principles to the Facts
As in Labaye, we are of the opinion that the sexual acts performed in the respondent’s establishment were indecent. They did not meet the Canadian community standard of tolerance. Because of the public nature of the place and the commercial nature of the activities, we conclude that the respondent’s establishment was a common bawdy‑house within the meaning of s. 210(1) Cr. C.
4.1 Nature of the Acts
We acknowledge that in the instant case the sexual acts performed on the dance floor of the respondent’s establishment were less explicit than the acts considered in Labaye. They consisted mainly of touching and masturbation, sometimes in groups. Several instances of fellatio and a single case of penetration were also observed. Despite this difference, we find that the acts were indecent. Our finding is based essentially on a contextual analysis of the activities. Accordingly, although the acts in the case at bar were less exceptional than in Labaye, we conclude from the fact that they took place in a more public and commercial place that they were indecent.
4.2.1 Private or Public Nature of the Place
It was much easier in the case at bar than in Labaye for members of the general public to gain access to the respondent’s establishment out of mere curiosity or by accident, and to witness sexual acts taking place there. There was only a doorman who asked each couple who wanted to enter the establishment whether they were a “liberated couple”; they were then required to pay a $6 admission fee. Any couple who observed these formalities could enter and witness the sexual acts taking place on the dance floor without being interviewed or receiving an official warning regarding the nature of the sexual acts being performed in front of everyone who was there. It is quite clear that the individuals who entered the establishment were not necessarily members of a club made up of people who shared the same philosophy. In fact, the general public received an express or implied invitation to enter the establishment, as may be seen from the numerous efforts made to advertise for new customers. The impugned acts in the instant case were performed in a public place that met the requirements of, inter alia, s. 197 Cr. C.
The degree of privacy afforded for the performance of sexual acts in the establishment was in fact virtually nil, in particular because there were 75 people on the dance floor. This conclusion is not changed by the fact that there was a translucent curtain encircling the dance floor. It was possible to see through the curtain, as the trial judge and the majority of this Court have noted. Furthermore, a gathering of 75 people, in the context of this case, does not constitute even a semblance of privacy.
4.2.2 Participants and Composition of the Audience
While the acts did in fact take place between informed and consenting adults, this does not in itself mean that they met the standard of tolerance. If consent had been absent, the acts could have been characterized as dehumanizing, degrading or demeaning, but there is no question of that here. Nor were any children present in the establishment, which would have been an important factor.
4.2.3 Measure Taken to Control Access
The measures taken, which supposedly limited access to the club to informed people who shared the philosophy of partner swapping, were practically nonexistent. Payment of an admission fee and an answer to a simple question as to whether a couple is “liberated” are not serious measures, having regard to the explicit nature of the sexual acts taking place in the establishment. As the majority has pointed out, the translucent black curtain that supposedly separated the space to be used for sexual acts concealed nothing; in any event, the presence of an opaque curtain would have created only a pretence of privacy, as we said above.
4.2.4 Commercial Nature of the Place and the Acts
A contextual analysis of the nature of the place and the acts shows that the activities in issue were commercial in nature. The respondent operated a bar intended to be used for group sexual activities. The evidence shows that numerous efforts were made to advertise for new customers. In addition, sexual acts could be performed in the establishment only after a mandatory commercial transaction, that is, the payment of an entrance fee. As in Labaye, this was a form of purchase of sexual favours, since everyone who entered was able to participate freely in sexual acts with the other participants. The association of these kinds of commercial aspects with the impugned sexual acts in the instant case contributes, in this context, to the result that the community’s threshold of tolerance for those practices was exceeded.
4.2.5 Resulting Social Harm
It can also be concluded that a certain form of social harm was sustained in the case at bar that resulted from the failure to meet the minimum standards of social morality, having regard to the public and commercial context in which the impugned acts occurred. The harm resulted, in this case, from the fact that the explicit sexual acts were performed in public in an inappropriate context.
4.3 Conclusion Regarding Indecency
Overall, having regard to the factors that lower the Canadian community’s tolerance for the impugned sexual acts, we are of the opinion that the practices observed in the respondent’s establishment would not be tolerated by the Canadian community because of their public and commercial character. In our view, society does not tolerate people paying to take part in group sexual activities such as were observed in this case in a licensed commercial establishment that provides no degree of privacy and to which the general public has extremely easy access. The acts were consequently indecent. There are appropriate restrictions of time where the performance of sexual acts is concerned, and they do not appear to us to have been observed in the instant case. The respondent’s establishment was therefore a common bawdy‑house within the meaning of s. 210(1) Cr. C.
We would allow the appeal, set aside the judgment of the majority of the Quebec Court of Appeal and restore the conviction of the respondent.
Germain Tremblay (instructed by City of Montréal), for the appellant.
Lucie Joncas and Christian Desrosiers (instructed by Desrosiers, Turcotte, Massicotte, Vauclair, Montréal), for the respondent.
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