Canadians can have group sex in clubs: top court
Wed Dec 21, 2005 10:16 AM ET168


By David Ljunggren

OTTAWA (Reuters) - Group sex between consenting adults is neither prostitution nor a threat to society, the Supreme Court of Canada ruled on Wednesday, dismissing arguments that the sometimes raucous activities of so-called "swingers" clubs were dangerous.

In a ruling that radically changes the way Canadian courts determine what poses a threat to the population, the court threw out the conviction of a Montreal man who ran a club where members could have group sex in a private room behind locked doors.

"Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," said the opinion of the seven-to-two majority, written by Chief Justice Beverley McLachlin.

The decision does not affect existing laws against prostitution because no money changed hands between the adults having sex.

The court was reviewing an appeal by Jean-Paul Labaye, who ran the L'Orage (Thunderstorm) club. He had been convicted of running a "bawdy house" -- defined as a place where prostitution or acts of public indecency could take place.

Lawyers for Labaye and James Kouri, the owner of another swingers' club in Montreal, had argued that consensual sex between groups of adults behind closed doors was neither indecent or a risk to society.

The Supreme Court judges agreed.

"Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society. The Crown failed to establish this essential element of the offence. The Crown's case must therefore fail," wrote McLachlin.

In indecency cases, Canadian courts have traditionally probed whether the acts in question "breached the rules of conduct necessary for the proper functioning of society". The Supreme Court ruled that from now on, judges should pay more attention to whether society would be harmed.

The judges said that just because most Canadians might disapprove of swingers' clubs, this did not necessarily mean the establishments were socially dangerous.

"Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear," the judges said, noting that no one had been pressured to have sex or had paid for sex in either of the cases.

"The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual activity in question only those already disposed to this sort of sexual activity were allowed to participate and watch," they said.