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Another quality page linked to Jim's Pen is Central! |
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Another quality page linked to Jim's Pen is Central! |
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This letter to the editor by Peter Simm was originally published as the Toronto Sun Letter of the Day on 22 July 1997. It was republished in the newsletter for TNT!MEN, whose version we repeat here.
As a lawyer who has studied the law
on nudity, I'd like to clear up a few legal misconceptions in a
recent Sun editorial on unclad marchers in Toronto's Pride Parade
("Time to grow up", July 7).
The law on public nudity is surprisingly complex. The Sun's editorial correctly states that "total nudity is still against the law." However, even if all you wear are socks, the Supreme Court of Canada says that you are not automatically considered "nude" for purposes of the Criminal Code. You're breaking the law only if "so clad as to offend against public decency."
Since all of the marchers in the Pride Parade at least wore shoes, the courts' interpretation of "public decency" comes into play. The legal test isn't whether you would want to attend the Pride Parade and see a few flaccid phalluses filing past (or would even free willy yourself). The test is whether the average Canadian would tolerate Pride Parade-goers seeing such a sight. It is worth remembering that under Ontario Film Review Board guidelines, even a Family-rated film can contain "casual, non-sexual nudity."
When Gwen Jacob took a topless stroll through Guelph, the Ontario Court of Appeal concluded that any purported evidence of "harm" was highly speculative. It seems doubtful that any better evidence of "harm" could be adduced here. The Court also noted: "No one who was offended was forced to continue looking at her." The Supreme Court of Canada has emphasized that for nudity, context is everything. What's cheered in a tavern on Saturday night could cause a riot in a church Sunday morning. The law does not equate the Pride Parade with the Santa Clause Parade: these events have completely different audiences. And, as your editorial points out, no one can claim astonishment that a Pride Parade contains sights that could embarrass a prudish parent.
Sgt. Harmsen threatened to cancel next year's Pride Parade, complaining, "You wouldn't be able to do those things anywhere else." Even if true, this doesn't mean it's illegal, or that police inaction here amounts to a double standard. The law requires that the particular circumstances be taken into account.
A court may well find that the context truly is unique. No other time and place in Canada is like the parade route during Toronto's Pride Parade. There simply isn't "anywhere else" that is a close match.
That's probably why Metro Police Deputy Chief Robert Molyneux, the ranking officer involved with the Pride Parade, apparently received a legal opinion that no laws were broken. Having studied the relevant case-law, I would concur.
Thankfully we live in a society governed by the
rule of law. This means that Sgt. Harmsen's job is to enforce the law
-- not to use his badge to make citizens conform to his own personal
views on what is or isn't appropriate.
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initialized on 8 August 1977.