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 editorial correctly states that "total nudity is still against the law."
However, even if all you're wearing is socks on your feet, 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.
When Gwen Jacob took a topless stroll through Guelph, the Ontario Court of Appeal
concluded that any purported evidence of "harm" was highly speculative.
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 Saturday night could cause a riot in a church Sunday
morning. The law does not equate the Pride Parade with the Santa Claus 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 with kids in tow.
Sgt. (Peter) 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 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 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.
Peter A. Simm
Toronto
(Then there's the law of gravity)